November 20, 2015

Florida Police Officer Arrests Person Sleeping in Car for DUI, Case Gets Thrown Out

Most DUI cases start with a police officer observing a suspect driving a vehicle in an erratic manner or at least in such a way that one or more traffic laws are violated. This allows the police officer to stop the driver and have an encounter. However, occasionally, we see DUI cases that begin when the suspect is not driving at all. Many of these DUI cases begin when a police officer observes a person sleeping in a vehicle that is parked, sometimes legally, sometimes illegally, and sometimes in the roadway. Other times, a concerned citizen sees a person sleeping in his/her car and calls the police to check it out.

It is certainly not illegal to sleep in your car, so the police are not permitted to detain you or arrest you based on that alone. Of course, where your car is parked when you are sleeping in it will be a factor in whether the police officer has sufficient cause to move forward with a criminal investigation. If your car is in your driveway or in a regular parking spot, the police officer will have less of a legal reason to wake you up and question you. If you are partially in the roadway, there would be more evidence to suggest driving while impaired from alcohol or some other problem which gives the police officer more legal reason to investigate.

Generally, when a police officer sees a driver asleep in a vehicle, that police officer can come to the vehicle to check on the driver. Sleeping alone is not sufficient evidence of impairment from alcohol so the officer cannot detain the driver and start a DUI investigation. The police officer can check and see if there appears to be a medical emergency and if so, go into the vehicle to help. However, the officer cannot assume a medical problem; the officer must have specific evidence of a medical problem. The officer cannot assume the driver is drunk either. If there are alcohol containers near the driver, that may be enough evidence of a DUI to move forward with an investigation, but absent specific evidence of alcohol or drugs, the police officer cannot start a DUI investigation. Basically, sleeping in the car can prompt a police officer to look inside the vehicle, but unless there is specific evidence of a medical problem or alcohol/drugs, the officer has to leave the driver alone after a brief encounter.

In a recent DUI case, just south of Jacksonville, Florida, a police officer saw a driver asleep in her vehicle which was parked in a parking spot at 11:00 pm. The officer knocked on the window, and the driver appeared to wake up mumbling. The police officer then instructed the driver to exit the vehicle and began a DUI investigation that led to a DUI arrest. This DUI case was thrown out. The police officer did not have any evidence that the driver was impaired from drugs or alcohol so he was not authorized to detain the driver by having her exit the vehicle. Once he did that, he violated the search and seizure provisions of the Constitution and whatever evidence he obtained after that became inadmissible in court.

October 29, 2015

The Odor of Alcohol is Not a Sufficient Basis for Police to Start DUI Investigation in Florida

In Florida, many DUI investigations and arrests begin with a simple traffic stop. Sometimes the police officer suspects the driver is driving under the influence of alcohol before he/she makes the traffic stop and sometimes the police officer claims to develop suspicion after making contact with the driver. Police officers use several clues or factors to justify a DUI investigation, although as criminal defense lawyers in Florida, we see the same few "observations" show up over and over again.

Police officers are allowed to make a traffic stop based on an observation of a traffic violation, such as speeding, running a red light or driving in and out of the traffic lane while endangering other drivers. This gives the police officer authority to stop the driver and issue a citation for the traffic violation. If the police officer wants to extend the encounter to investigate for DUI (or any other crime for that matter), the police officer must be able to articulate specific indicators of criminal activity. This is, again, where we see the same comments show up over and over. For instance, the police officers will almost always testify that he smelled an odor of alcohol coming form the driver and that the driver had a flushed face and watery, bloodshot eyes and was slurring his/her speech. Those "observations" come standard with just about any DUI police report. The problem is that some of them often cannot be independently verified, even if there is a DUI video.

In any case, all of those observations must be sufficient to allow the police officer the right to hold the driver for a DUI investigation which usually includes a request for the field sobriety test and a request for a breathalyzer test after the driver is arrested for DUI and taken to the jail. Every case is different (even if the DUI police reports look very similar), and each one must be evaluated on its own merits. Almost all DUI police reports are going to mention odor of alcohol. In Florida, this alone is not a sufficient legal basis to detain a driver for a DUI investigation. Remember, the crime is driving while impaired from alcohol which is not the same as driving after having had alcohol to drink. The police officer must show not only that the driver had consumed alcohol (or drugs), but that the driver was also impaired from the alcohol (or drugs). Odor of alcohol is mere evidence of drinking which, by itself, is not illegal.

This is helpful to people who have had a couple of drinks over some period of time but are not impaired. However, the benefit is limited because very few police officers are just going to report odor of alcohol in their reports. The reports will normally include the other factors commonly mentioned. At that point, it depends on the circumstances and the evidence if a motion to suppress is filed and the police officer had a legal basis to detain the driver for a DUI investigation. After the criminal defense lawyer files that motion to suppress, a hearing is held with the police officer and the DUI video, if there is one, and the judge ultimately decides if the detention was legal or not.

October 26, 2015

Florida Man's Detained After Driving to House Being Searched for Drugs

In Florida, the police generally cannot search a person's vehicle without consent, a search warrant or specific indications of illegal activity occurring within the vehicle. However, police can often come up with certain observations that allow them to search a person's vehicle under certain circumstances.

In a recent case near Jacksonville, Florida, the police were executing a search warrant at the home of a suspected marijuana dealer. During the search, the suspect drove up to the house for a visit. He did not live there and had no apparent connection to the house. A police officer approached the suspect and started asking him questions about whether he had any weapons or drugs. The suspect did not answer so the police officer told him to get out of the vehicle. After some more questions, the suspect admitted to having some Oxycodone pills without a prescription, and his car was searched. He was then arrested for possession of pills without a prescription.

A police officer is free to ask anyone questions in that situation, but once the police officer tells the suspect to exit his vehicle, the encounter becomes a detention. The police officer is only justified to tell the suspect to exit the vehicle if there is some indication of illegal activity or there is a risk to the officer's safety. In this case, the police officer relied on the officer safety risk angle. After the criminal defense lawyer filed a motion to suppress the evidence of the drugs found in the car, he testified that the suspect was acting nervously, was not properly answering his questions and was hiding his hands. Based on that, he detained the suspect because he was worried about his safety. The court agreed and justified the search.

A police officer can detain a person and conduct a brief search of him if there is specific evidence that the suspect might be armed and there is a concern for the officer's safety. In this case, it did not appear that the officer relied on anything other than vague generalities. However, the court allowed the detention. This appears to be an example of the police getting around the right to privacy protections in the Constitution based on vague generalizations and speculation, which is exactly what the Constitution is supposed to prevent.

October 22, 2015

Should I take the breath test if I'm stopped for DUI?

As a criminal defense firm in Jacksonville and Orlando, we often get asked the question, "Should I take the breath test if I'm stopped for DUI?" While this is a very specific question, we always give a wider answer. When someone is pulled over, it is usually for a traffic violation (i.e. speeding, running a red light or stop sign, weaving). Once the officer approaches the driver's side of the vehicle, they often claim that they developed reasonable suspicion to believe the person was impaired. For example, they will use the buzz words, "bloodshot, water eyes," "slurred speech," and "flushed face." Based on these observations, the officer will ask the person to step out of the vehicle. The officer will again make observations about whether the person can maintain their balance, whether they fumble with their license and registration, and whether their answers are incoherent. It is important to understand that officers are often looking for signs of impairment, while they ignore what I like to call "signs of non-impairment." The signs of impairment will make it into the police report. The signs of non-impairment often will not.

If the officer believes there is reasonable suspicion that the person is impaired, he or she will ask the person to perform what we call "field sobriety tests," while the officer will call them "field sobriety exercises." Field sobriety tests can include the finger to nose test, walk and turn test, rhomberg alphabet test, one leg stand test, and rhomberg balance test. We have noticed that when there is a video, the officer's explanation of what happened often does not match what is in the video. Whether a person appears impaired is an opinion. And reasonable people can disagree. Regardless, the officer has an interest in making sure that the eventual arrest is justified. Therefore, the police report will often embellish what actually happened. For example, the report may read, "the suspect was swaying from side to side," which makes a visual image in the mind of a person swaying dramatically. However, often we will watch DUI videos where there is no clear sway and it appears to us, and often to jurors, that the person's sway is natural and not indicative of impairment.

But back to the original question. The field sobriety tests are not required by law. A person cannot lose their license or be prosecuted simply for declining to perform the field sobriety tests. However, if a person is arrested for DUI, the State can use their refusal against them in court. In other words, the prosecutor can stand in front of a jury and argue, "[l]adies and gentlemen, why would the defendant refuse to perform field sobriety exercises unless he knew that he was impaired?" The DHSMV can also use the refusal to perform field sobriety tests as evidence to support the license suspension.

Now we finally get to the question, "[s]hould I take the breath test if I'm stopped for DUI?" In Florida, driving is a privilege and not a right. Florida has an implied consent law, meaning that it is implied that a person consents to a lawfully administered sobriety test. This doesn't mean that people do not refuse the breath test. But it does mean that there are consequences when you do refuse. Check your driver's license. It states, "Operation of a motor vehicle constitutes consent to any sobriety test required by law." This does not include field sobriety tests, but does include lawfully requested breath tests, urine tests, and bloods tests. So, if a person refuses a lawfully requested breath test, his or her driver's license will be suspended for one year. (Although there is an appeals process). If it is a second refusal, it is a misdemeanor for refusing the test, in and of itself. Additionally, the State can argue that the only reason to refuse a breath test is because the driver knew that he or she was impaired. It should be noted that if a person submits to a breath test and blows over a .08, the State can prove the DUI by establishing that the person blew over a .08, without regard to signs of impairment.

October 13, 2015

The Florida DHSMV Can Suspend Your Driver's License For Failing to Pay Alimony

In Florida, it is a misdemeanor crime to drive a vehicle if your driver's license has been suspended. The Florida Department of Highway Safety and Motor Vehicles can suspend your driver's license for a variety of reasons - a DUI arrest, failing to pay traffic tickets, a possession of marijuana conviction and other reasons. If you get a few driving with a suspended license charges within a certain period of time, it can lead to habitual traffic offender status and a five year driver's license revocation. This can become a real problem for someone who needs his/her vehicle for work, to take care of children and other necessities. Not only do multiple driving with a suspended license convictions result in longer driver's license suspensions, if you get enough of these charges in a relatively short period of time, they can result in felony convictions and serious jail or prison time.

There is another basis for the state to suspend your driver's license that has nothing to do with traffic laws or criminal charges. In a recent case near Jacksonville, Florida, a man was ordered to pay alimony, or spousal support, as part of a divorce judgment. However, he allegedly lost his job and stopped making the alimony payments. The Florida Department of Revenue sent him a notice of intent to suspend his driver's license and motor vehicle registration for failing to pay alimony. The man challenged the procedure by which his driver's license and vehicle registration were suspended, but he lost. The state is allowed to suspend a person's driver's license and vehicle registration for failure to pay alimony. The individual would be allowed to petition the court for relief based on the loss of his job or income, but this is another method by which the state can suspend a person's driver's license.

It could certainly be argued that this is a counterproductive enforcement technique, particularly if a person lost his/her job or had some other financial emergency. Additionally, if a person can not drive and gets a criminal conviction for driving with a suspended license, it makes it difficult to get or keep a job. Without stable employment, it is difficult to pay alimony or child support. On the other hand, when people do not pay alimony or child support, the state does not have many options to enforce the support order, and doing nothing certainly will not help the person who needs the financial assistance.

October 5, 2015

EL Faro Ship That Departed From Jacksonville Florida Still Missing

As people in Jacksonville, Florida and along the east coast know, there was a lot of discussion about Hurricane Joaquin last week and the various paths it might take. Some meteorologists had Hurricane Joaquin partially contacting the east coast of Florida while others predicted that it would pass well east of Florida and cause a tremendous amount of rainfall in the South Carolina area. In any case, just about every meteorologist expected Hurricane Joaquin to move north as it past Florida to the east, which is what it did. The only question was how close it would get to the Florida coast.

While Jacksonville was not victimized by Hurricane Joaquin, it did apparently cause a serious tragedy to a ship and crew that left Jacksonville for Puerto Rico on Tuesday of last week. The ship, which carried a crew of 33 people and almost 700 containers, was lost at sea on Thursday, when Hurricane Joaquin was to the east of Florida. Officials lost contact with personnel on El Faro when it was near the Bahamas, on the way to Puerto Rico. It was estimated that El Faro would have been traveling through 20 to 30 foot waves as it made its way to Puerto Rico during the hurricane. As of the date of this post, the ship has not been found although some debris from the ship has been recovered as part of the search and rescue mission.

The ship is owned by TOTE Maritime, which indicated that most of the people on El Faro are from the United States, while a few of them are from Poland. Many of the Americans on El Faro have some connection to Jacksonville, the city from which El Faro departed.

An obvious question is why a container ship would be traveling when it was well publicized that a hurricane, or potentially a tropical storm, was in the area. Hurricane Joaquin was a very popular subject in the media for almost two weeks, certainly during the week El Faro departed, and its path was fairly well predicted. Undoubtedly, El Faro's owner will contend that the ship and crew were equipped to handle Joaquin. However, since that does not appear to be the case and there is the potential for significant loss of life and property, the company will likely come under serious scrutiny as to why the decision was made to send the ship under these circumstances. The potential liability for that decision could be massive.

September 18, 2015

Marijuana Case in Florida Thrown Out When Police Don't Make Effort to Preserve Evidence

As most people with a basic understanding of the criminal justice system understand, the state always has the burden of proof in a criminal case. That means the state is obligated to prove, with evidence, that the defendant committed the crime with which he/she is charged. A person is always considered innocent until the state meets that burden. Of course, if the state never produces sufficient, convincing evidence to prove guilt beyond a reasonable doubt, the defendant remains innocent. Perhaps it is human nature for people to assume someone is guilty based on rushed and poorly researched media articles or even just an arrest on serious charges, but that is not how the system is supposed to work. Evidence controls.

In a recent possession of marijuana case near Jacksonville, Florida, the state failed to preserve and produce evidence of the defendant's guilt, and the marijuana charge was thrown out. This revolved around an incident that took place while a local station was filming a reality show about police officers. The local station had an agreement that allowed them to ride with the police to film the show.

The police officers indicated they saw the defendant smoking a marijuana cigarette, detained him and found more marijuana in his picket. The suspect claimed he was just smoking a cigar with tobacco and argued that the video would support his claim. The criminal defense lawyer attempted to obtain the footage of the encounter from the TV station, but they refused to provide it unless the defendant signed a waiver allowing them to show the incident on TV. He refused, and the station ultimately destroyed the video.

The police never made an attempt to recover the video despite their relationship with the TV station.

The criminal defense lawyer filed a motion to dismiss since this evidence of the incident was destroyed. The court agreed finding that the police knew the video had material information on it, they made no attempt to obtain it, the defendant tried to get it and was denied through no fault of his own and the evidence was destroyed with potentially exculpatory evidence on it.

The court found that the defendant's due process rights were violated. The police had an obligation to attempt to preserve what may have been critical evidence that could have been exculpatory for the defendant. They failed to do so and the video was destroyed, which prevented the defendant from properly defending his case. It would have been different if the defendant was responsible for the destruction of the video, but he attempted to retrieve it, and it was up to the police to preserve it.

September 11, 2015

Police in Florida Can Only Arrest for Resisting Arrest if There is a Legal Basis for the Initial Arrest

That is sort of a convoluted title, but the issue is when police can arrest someone for resisting an arrest. In Florida, resisting arrest can be a misdemeanor or felony charge in Florida. It is a misdemeanor if a person resists arrest without violence; it is a felony charge if a person resists arrest with violence. An old joke says that if the suspect wins the fight, it is going to be a felony, and if the police officer gets the upper hand, the suspect may have a shot at coming away with a misdemeanor. In any case, whether the charge is a felony or misdemeanor is based on the subjective determination of the police officer and then ultimately the prosecutor, unless it is clear that serious violence was used to resist arrest.

However, the state cannot just arrest and charge anyone who resists the commands or arrest of an officer. The police officer must have a legal basis to stop, investigate and/or arrest the suspect to begin with. If a person is minding his own business and the police officer tries to detain the person based on suspicion and the person resists, a police officer will often arrest the suspect for resisting arrest. However, the criminal defense lawyer may file a motion to dismiss alleging that the police officer had no legal basis to detain the suspect in the first place so the resisting arrest charge is not valid.

In a recent case near Jacksonville, Florida, the police responded to a domestic dispute. When they arrived, the saw the suspect heatedly arguing with his girlfriend outside of their home. When they arrived, the suspect took the girl inside the house. The police looked through the window and did not see any illegal activity or fighting. The girlfriend ultimately exited the house with no injuries. The police ordered the suspect out of the house, but he refused. They entered his house with the K-9, and an altercation resulted between the suspect and the police. The suspect was charged with resisting arrest with violence.

The charge was ultimately thrown out after an appeal by the criminal defense lawyer. The court found that the police were not within their legal rights to enter the house. They did not see any fighting, any injuries or any crime being committed. By the time they entered the house, the girlfriend was outside so there was no evidence that anyone in the house was in danger. At that point, without evidence of danger or an emergency, the police either needed a search warrant or consent to enter the home. Since they entered the home illegally, they had no right to arrest the suspect so he could not be properly charged with resisting arrest with or without violence.

July 24, 2015

Florida DMV Can Suspend Your Driver's License for Medical Reasons Based on Confidential Tip

One thing people in Florida do not always realize is that driving is considered a right, not a privilege. This does not mean that the DMV in Florida is going to withdraw drivers' licenses for no reason, but it does mean that when the DMV does revoke a person's driving privileges, that person may have much less recourse than in criminal cases where Constitutional rights are at issue.

For example, in DUI cases, the DMV will almost always suspend a person's driver's license based merely upon a DUI arrest. Of course, according to Constitutional law, a person is innocent until proven guilty and an arrest, by itself, is not proof of guilt. However, since driving is a privilege and the DMV operates under its own set of rules, they can suspend a driver's license immediately upon a DUI arrest. The driver will have an opportunity to challenge the license suspension, but that process does not have anywhere near the safeguards and thoroughness that comes with a criminal case.

The DMV can also suspend your driver's license if there is an indication that you are not medically fit to drive. All it takes to start this process is a report from someone that you are not medically fit to drive. This can be a doctor or anyone with any knowledge of your ability to drive. If someone makes such a report to the DMV, the DMV might open a file and send you a letter telling you to go see a doctor and get examined to see if the doctor thinks you should be driving. The doctor would then prepare a report that goes to the DMV. If the doctor concludes that you are not fit to drive, the DMV will likely suspend your license until you can prove, with the assistance of a doctor, that you are competent to drive.

Additionally, if the DMV sends you a letter indicating that they have reason to believe you are not fit to drive and requesting a report from a doctor and you do not comply, the DMV can suspend your driver's license until you do comply with the DMV's instructions and get an evaluation and report from a qualified doctor. In the meantime, you are not allowed to discover who made the report to the DMV or what the person said to the DMV about your medical condition and your driving. There are probably a few reasons for the confidentiality of this process, but I assume one of them is to encourage people to report family members without that family member knowing.

July 16, 2015

Examples of When the State Cannot Prove Constructive Possession in Florida

In Florida, there are a lot of drug cases and gun cases that involve the concept of constructive possession. Actual possession is when the police find a gun or drugs on a person i.e. in his pocket, in his hand, in his waistband, sees him throw the drugs on the ground. Constructive possession is a lot more vague. The state can convict a person of a possession of drugs or gun charge based on constructive possession. However, it can be more difficult.

In layman's terms, constructive possession means the illegal item(s) is in a place where it is sufficiently clear the suspect knew it was there and had some control over it. In other words, the state needs to present sufficient evidence for a jury to believe the defendant knew about the item(s) and either put it there or had the ability to remove it. The state does not, however, have to prove the defendant actually did place the item there or intended to take it away at some point.

Again, it is vague, but some examples might help clarify it. Of course, ultimately, it is up to a judge or jury to decide.

If you go to a big party and you see marijuana on the table a few feet away but never touch it or do anything with it and the police come in, you are not in constructive possession of those drugs. The state could probably prove you knew it was there, but they could not prove you have any control over it, just like most other people at the party. it is not illegal to be in the presence of illegal drugs, although it is not a good idea either as anything can happen in these constructive possession cases.

If you live in an apartment with two roommates and the police search it and find a bag of cocaine in a clothes drawer, you might have a problem if it can be proven that it is your room and your drawer of clothes. For instance, the police might present evidence that your wallet and personal documents were in the room and the shirts in the drawer appeared to be your size and there are other indications that the room belongs to you. Of course, you can argue that a roommate or someone else put the drugs there without your knowledge, but nothing says a judge or jury has to believe that. In this case, you might win, but there would probably be enough evidence to establish knowledge and the ability to control the cocaine.

In a recent case near Jacksonville, Florida, the police searched some property including a vehicle that was on the premises. Several people were also on the premises at the time. Upon searching the vehicle, the police found a gun in the closed center console. They also found a recent rental car agreement for the car in the defendant's name right next to the gun in the center console. Since the defendant was a convicted felon, he was arrested for possession of a firearm by a convicted felon based on this evidence.

The defendant was actually convicted at trial, but fortunately for him, his criminal defense lawyer appealed, and the conviction was reversed. The court found that the rental car agreement next to the gun was not sufficient to prove possession. The rental car agreement was proof that the defendant rented the car, but it was not clear when the agreement was placed in the center console and when the gun was placed there. It was certainly possible that one of the other people at the property, or anyone else, drove the car or was in the car at some point and put the gun in the center console after the rental agreement was placed there. This case might have ended differently if the defendant was in the car at the time the police found the gun, particularly if the center console was open, but the fact that the defendant rented the vehicle did not mean he knew everything that was in the car days later, especially if the illegal item was not out in the open.

July 13, 2015

When Can Oral Communications Be Secretly Recorded in Florida?

With cell phones that have the capability to record audio and video, people record other people's communications all of the time. However, that may not be legal in Florida. There is a statute that addresses this issue, but its interpretation is not clear. The Florida statute basically says it is illegal to record another person's conversation without that other person's knowledge and consent. This means you cannot call someone on the phone and record the conversation without telling the other person you are recording the conversation and getting his/her agreement. There are exceptions to the rule, and it is not exactly clear how the exceptions apply.

Of course, as indicated, knowledge and consent of the other party makes recording legal. Also, there is a legal exception for law enforcement officers to intercept an oral communication when the officer is a party to the conversation and for law enforcement to record a conversation involving other people if one of the parties agrees and it is for the purpose of obtaining evidence for a criminal case.

Based on this, it is clear that the police are permitted to record a conversation between Person A and Person B if Person A knows about the recording and agrees to it and the purpose is to discover evidence for a criminal case. This is what is commonly known as a controlled call. The police often use this technique to have a trusted friend or family member who is working with the police call a suspect and try to get the suspect to make incriminating statements while they record the call. As long as the suspect's friend agrees to the recording, it is legal even though the suspect obviously will not be told of the recording or the police involvement.

The question is whether the requirement that the recording be for the purpose of obtaining evidence in a criminal case also applies when the conversation includes the police officer rather than just two or more lay people. The statute is not clear. A recent Florida appellate court case discussed this issue. The appellate court determined that the criminal evidence qualifier does apply to recordings that involve either private citizens together or police and private citizens. In other words, the police must be able to establish a purpose of uncovering evidence in a criminal case if they are going to secretly record a conversation only involving lay people or a conversation between a suspect and a police officer.

One other factor that could alter this conclusion. The prohibition of recording oral communications only applies when the suspect being recorded has a reasonable expectation of privacy. Phone calls would almost certainly qualify. However, discussions that take place in public or with several other people around may not be protected from recording by the Florida law because they are not deemed to be private.

July 10, 2015

State Cannot Use Breathalyzer Test Results Against Defendant in DUI Case Where Independent Blood Test Was Requested

In Florida, when a police officer makes a traffic stop and claims he/she observes evidence of impairment from alcohol, that officer will initiate a DUI investigation. This usually starts with questions about where the driver has been, how much the driver has had to drink and other questions about the driver and his/her activities. The driver, of course, is free to request a lawyer and refuse to answer those questions. Next, the police officer will request that the driver submit to field sobriety tests. Again, the driver is free to refuse to submit to those tests. The driver should probably refuse to submit to those tests if he/she has any health/physical issues and/or the police officer does not have a video camera in his/her vehicle that accurately, objectively and completely records the driver's performance of those tests. Sometimes, even when there is a video camera, it is difficult to observe exactly how the driver performs on some or all of the field sobriety tests. In that case, the driver is at the mercy of the police officer's subjective opinions as to his/her success. This can be due to the placement of the car in relation to the test location, the lighting and the obscure nature of the tests themselves.

After a DUI arrest, the police officer will ask the driver to submit to a breathalyzer test which tests the driver's blood alcohol level. The driver can refuse this test, but it is important to note that when a person in Florida agrees to accept a driver's license, he/she impliedly consents to submit to a breathalyzer test after a valid DUI arrest. If the driver decides to refuse the breathalyzer test, that driver is subjected to a longer driver's license suspension and could have the refusal used against him/her if the DUI case goes to trial.

However, some people do not necessarily trust the government with their lives and well-being. They might agree to submit to a breathalyzer test, but request an independent blood test that is not provided by the police. In this situation, the driver should politely and clearly request an independent blood test. Under Florida law, a person arrested for DUI whose breath is tested has a right to request an independent blood test. Of course, most people do not drive around with a lab technician who is prepared to test blood for alcohol. Likewise, the police are not likely to let the suspect who is under arrest leave to get a blood alcohol test and return later.

Therefore, the Florida courts have held that if a person whose breath has been tested requests an independent blood test, the police have to take reasonable steps to allow that independent test to occur. This would include a phone call and transportation to a place that could conduct such a test. If the police refuse the request for an independent blood test or do not take reasonable steps to assist the suspect in obtaining the independent blood alcohol test, the state's breath alcohol tests would likely be thrown out and unavailable to be used as evidence against the driver in court.