Defending Women Charged with DUI
At the Sammis Law Firm, P.A., our DUI attorneys pay particular attention to new developments in Florida law and special defenses that change over time. A few of these defenses are particularly important to a woman charged with DUI.
Although most individuals charged with DUI are men, women are being arrested for DUI in increasing numbers each year. Statistics nationwide indicate that more than 75% of the time the person arrested for DUI is a man while only 25% of the time the person arrested for DUI is a woman. Each year, the percentage of women arrested has steadily increased.
Call us to discuss the particular facts of your case and how the defenses discussed below might apply if you were arrested in Tampa or Plant City in Hillsborough County or any of the surrounding counties in the Tampa Bay area.
Call (813) 250-0500 for more information and a free, confidential consultation with an experienced DUI attorney the Sammis Law Firm in Tampa, FL.
Women and the DUI Field Sobriety Exercises
After a woman is stopped for drunk driving, the officer may request that she exit the vehicle to perform certain roadside agility exercises, called “field sobriety tests.”
These exercises can be especially difficult for women to complete successfully because of concerns about safety or the difficulty dealing with the stress of the situation.
Most officers in Florida have received some training in the academy in conducting three types of exercises:
- the HGN test (look at the tip of my pen and follow it with your eyes);
- the walk and turn test (take 9 steps down the line and nine steps back);
- the one leg stand (lift your foot off the ground and count).
Although the arresting officer may not tell you that the tests are voluntary, Florida law makes it very clear that the exercises are completely voluntary. If you tell the officer you do not want to take the exercises, he is supposed to tell you that the downside is that your “refusal” can be used against you in court. This means that at trial the jury might be told that you declined the officer’s invitation to take the voluntary exercises.
In certain cases, it might be better to decline to take the field sobriety exercises. In many ways, these exercises are designed to manufacture evidence against you. If you are certain that you will perform well on the exercises, it might be better to take the exercises.
In either case, the officer is asking you to perform voluntary exercises that will help him determine whether he has probable cause for the arrest or not.
If you decline and he does not have probable cause for the arrest, then he must let you go. If he believes he has probable cause for the arrest, then you will be arrested, booked into the jail, and held for at least 8 hours.
Concerns About Safety for Women
The vast majority of drunk driving (“DUI”) enforcement officers are men. Women stopped late at night, especially in isolated areas, may be reluctant to cooperate with a DUI officer for the purpose of completing the voluntary roadside agility exercises.
The officer may incorrectly assume that this reluctance is an indication of the driver’s “consciousness of guilt.” Women who decline the officer’s invitation to take the roadside agility exercises (or field sobriety exercises) in Florida may have very legitimate reasons for the “refusal” other than being under the influence of alcohol.
The Disadvantage of Doing Exercises in High Heels
Women who do agree to take the roadside agility exercises may be at a huge disadvantage if they are in high heeled shoes. Although the DUI law enforcement officer may give the woman the option of removing her shoes before attempting the field sobriety exercises, walking barefoot on the roadside may not be a safe or comfortable option.
Wearing flip flops or sandals can also make it difficult to perform the exercises. Men typically wear more comfortable shoes and are therefore given a huge advantage in performing well on these physical exercises.
The stress of taking the roadside agility exercises late at night on the roadside may be so stressful for some women that their performance on the exercises might suffer as a result of the stress or anxiety.
Women React Differently to Stress
Being stopped by an overly aggressive DUI officer would be a stressful situation for anyone. Women tend to react to unusual and stressful situations very differently than men. For instance, women may be more likely to begin crying or shaking, not because they believe they are guilty, but because of the stress of the situation.
The woman might also become defiant and question the officer’s authority to continue the detention. A male officer may incorrectly interpret those physical indications of stress as indicators of alcohol intoxication or drug impairment.
Special Reasons Women Refuse Chemical Testing in DUI Cases
Women may also be more reluctant to take a chemical testing of breath, urine or blood because of privacy or safety concerns. A woman who feels as if she was treated unfairly during the arrest may be less likely to accept the officer’s invitation to take her blood, breath or urine because of those circumstances that are completely independent from being “conscious of guilt.”
As a result, even women who believe they are completely innocent of DUI might decide to refuse chemical testing.
If you have been charged with a DUI refusal case, it is particularly important to talk with an experienced DUI attorney in Tampa about all of the facts and circumstances that surrounded the arrest and the reasons why you refused to take the breath test.
Gender Bias Inherent in the DUI Breath Test Machine
When a female is arrested for DUI and submits to a breath test, special defenses may exist to show that the breath test reading is flawed. This defense is particularly effective in cases involving readings that are only over the legal limit of 0.08 but less than 0.15.
Hiring a DUI expert who can provide testimony on the newest scientific studies showing “gender bias” inherent in the breath test machine may make the difference in your Tampa Bay drunk driving case.
The breath test machine used in Florida, the Intoxilyzer 8000 (sometimes called the “intox machine” or breathalyzer), can give incorrect readings when used on women. Several scientific studies support the fact that because of inherent bias in the breath test machine women often have artificially inflated readings.
This means that if a woman and man with the same body weight drink exactly the same amount of alcohol over the same time period and then take a breath test the woman’s breath test reading may be significantly higher than the man’s reading.
According to the Breath Test Operator Manual for alcohol testing program in Texas, gender does make a different.
“Total body water content also varies according to gender. On average, women have less body water than men do on a per pound basis due to body composition. The same ethanol intake in terms of body weight results in a higher alcohol concentration in women than in men.
For example, a 100 pound man would have to consume more alcohol than a 100 pound woman to achieve the same concentration, because the man has more water in his body with which to dilute the ethyl alcohol.”
Alcohol Absorption and Women
The Intoxilyzer 8000 was designed and calibrated with the average man’s physiology in mind, even though a woman’s physiology is very different. Women absorb alcohol differently than men.
For example, women can obtain a higher Blood Alcohol Content (BAC) faster than a man because women have a much higher fat to muscle ration than men. Because of this lower ration of lean muscle mass, alcohol is not absorbed as quickly.
Additionally, women have a lower percentage of water in their bodies than men, which can cause a higher breath test reading. If a man and a woman of the same weight consume the same amount of alcohol, the alcohol disperses into all body water inside and outside of cells. Because women have less water in their bodies, the alcohol appears more concentrated.
It also takes women longer to metabolize alcohol because women have less of the ADH enzyme in their bodies than men of the same size and weight. The lower level of the ADH enzyme results in a higher proportion of alcohol reaching the blood stream before being converted into acetate.
Numerous studies also show that this gender bias inherent in the Intoxilyzer 8000 is particularly noticeable for petite or very thin women.
Breath Test – Fluctuations in a Woman’s Body Temperature
Women also have larger fluctuations in body temperature than men. During a woman’s premenstrual state her body temperature is elevated creating which creates an elevated blood alcohol concentration reading because of incorrect assumptions made by the machine.
The breath test machine assumes that the temperature of the breath is 34 degree Celsius. Every degree of body temperature over that “normal assumption” creates a reading that is artificially high.
Scientific date on the subject shows that even a body temperature one degree over normal can cause a breath test reading that is 6.9% higher than it should be. Studies have also shown that women who take birth control pills will absorb alcohol faster which also contributes to an artificially high Blood Alcohol Concentration reading.
If a woman and man of the same size and height consume the same amount of alcohol over the same period, the woman’s reading may be artificially higher than the man’s reading for any of these reasons, even though their level of intoxication and impairment is the same.
This gender bias is compounded by the fact that the breath test machine was not developed for testing on women. Instead, it was designed and calibrated with the “average man” in mind. The breath test machine was created using the average man’s lung capacity, temperature, lean muscle mass, water content, and other factors.
DUI and Diet Drinks
Many cocktails popular with young women can cause surprising results for the woman’s blood alcohol levels because blood alcohol levels depend not just on the amount of alcohol consumed, but also by a host of surrounding circumstances.
For instance, drinking a cocktail mixed with diet soda may cause alcohol to hit the bloodstream faster than when that same cocktail is mixed with a beverage that contains sugar.
A recent study found that artificially sweetened beverages left the individual’s stomach faster than alcohol consumed with a beverage contained sugar. Although blood alcohol levels peaked 30 minutes after the drinks were consumed, the individuals that consumed the alcohol with the diet drink had an average blood alcohol level of 0.05, while those individuals that consumed the alcohol with a sugary drink had an average blood alcohol level of only 0.03.
Artificially Sweetened Versus Regular Mixers Increase Gastric Emptying and Alcohol Absorption – Web MD article discussing the study published in the American Journal of Medicine, Volume 119, Issue 9, Pages 802-804.
Defending Women Charged with DUI in Florida
If you have been arrested for DUI then call us to discuss your case. Schedule a confidential and free consultation to discuss the best strategy for fighting your charges.
The breath test machine can be inaccurate, especially when the person taking the test is a woman. Other special considerations are important when defending DUI cases against women.
The criminal defense lawyers at the Sammis Law Firm pay particular attention to special defenses that might be available to women charged with DUI. Call us today to discuss your case. Read more about our recent case results in DUI cases.
This article was last updated on Friday, August 17, 2018.