Articles Posted in DUI

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Some people in Florida believe they are only at risk of a DUI arrest if they are caught driving on the public roads by a police officer while impaired from alcohol or drugs.  That is not true.  A person does not even need to be driving to be arrested and convicted of DUI.  The Florida driving under the influence statute confers criminal liability on anyone who is driving while impaired from alcohol or drugs or in actual physical control of a vehicle while impaired from alcohol or drugs.  We have dealt with many cases where a person was arrested for DUI while resting or sleeping in a vehicle that is not even running.  The state can move forward with a DUI case in that situation if the suspect had the keys to the vehicle and it was capable of being driven, even if the keys were not in the ignition at the time.

Additionally, a police officer can initiate a DUI investigation when the suspect is on private property, as opposed to driving on the public roadway, in some situations.  In a recent DUI case just south of Jacksonville, Florida, witnesses observed the suspect crash through the barricade at the entrance to a private parking garage and proceed to park inside.  The witnesses called the police, and a police officer found the suspect in the parking garage.  He initiated a DUI investigation and ultimately arrested him for DUI.  The criminal defense lawyer moved to dismiss the DUI charges because the incident took place in a private garage.

Florida law is not exactly clear as to a police officer’s authorization to detain, investigate and arrest someone for DUI inside a private garage or other private property.  It is certainly possible that if all of the events of this incident occurred within the confines of the private property, the police officer would not be authorized to conduct a DUI investigation.  However, in this case, the defendant crashed through the barricades at the front of the property from a public roadway and proceeded into the private garage.  Additionally, the driver did not pay to enter private garage as patrons were supposed to if they wanted to lawfully use the garage.  The court found that this was sufficient to allow the police officer to conduct a DUI investigation and ultimately make the DUI arrest.  Had the defendant entered the garage appropriately and shown signs of impairment once inside, perhaps by hitting a parked vehicle inside, it is not clear if the police officer would have been permitted to conduct a DUI investigation at that point.

 

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In Florida, a police officer is not normally permitted to arrest a person for DUI (driving under the influence of alcohol or drugs) unless the police officer observes the suspect actually commit the crime.  This applies to standard DUI’s, not DUI’s involving an accident.  This is not an issue in most DUI cases in Florida as DUI arrests are usually the result of a traffic stop after the police officer claims to observe the driver commit some traffic violation.

However, there are situations where a police officer comes upon a person he/she believes to be impaired, but the driver is no longer operating the vehicle or in actual physical control of the vehicle (usually characterized as being inside the vehicle in the driver’s seat with the keys).  In these cases, the police officer may not be able to make a DUI case even if he/she has reason to believe the suspect was recently driving the vehicle while impaired from alcohol or drugs.

For instance, in a DUI case just south of Jacksonville, Florida, a witness observed the suspect driving erratically and then come to a stop in the roadway.  The witness was in the medical field and decided to stop and see if the driver needed any medical assistance.  The witness got the driver out of the vehicle, obtained her keys and drove the vehicle off to the side of the road.  It became apparent to the witness that the driver was impaired from alcohol.  A police officer arrived when the driver and the keys were already outside of the vehicle.  The police officer arrested the driver for DUI based on his observations that she was drunk and the witness’s statement that she had been driving.

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In Florida, most DUI (driving under the influence of alcohol or drugs) cases involve the police requesting the defendant take a breathalyzer test at the jail. This test is normally offered only after the police make the DUI arrest. Therefore, if the defendant has a low score on the breathalyzer, or even a 0.00 result, the defendant is still arrested for DUI. In many cases, the police will then request a urine or blood sample to test for other substances. The police do not admit error after making an arrest, and once the police effect the DUI arrest, there is no going back.

There are times when the police can draw blood and send the blood to the lab for testing of blood alcohol content. The police are not allowed to obtain a blood draw when a breath test is viable and reasonable, as in most DUI cases in Florida. However, the DUI suspect can request one, and there are other situations where the blood draw is permissible. This often comes up in DUI cases that involved serious accidents.

In Florida, when a person is involved in a serious accident and has a serious injury that requires a trip to the hospital, it may not be practical to obtain a breath sample from the DUI suspect. In those cases, the police may be allowed to obtain a blood sample at the hospital for testing. The police cannot do it in any situation where there is an accident and the suspect is taken to the hospital with serious injuries. The police need reasonable and sufficient evidence that the suspect was impaired while driving. However, it seems as if that standard is pretty low when serious accidents are involved.

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Does a police officer in Florida have the right to arrest a person who commits a crime outside of his/her jurisdiction? It depends. The general rule is that police officers have no authority to arrest people for crimes outside of their jurisdiction. However, there are exceptions. Some neighboring cities and counties have agreements that allow a police officer to make an arrest for certain crimes in the other jurisdiction. Also, there is such a thing as a private citizen’s arrest, and police officers have the same right to effect a citizen’s arrest in a different city or county as private citizens do. Private citizens in Florida are allowed to arrest another person if that person commits a felony or breach of peace in his/her presence.

In this case, the police officer received a call about a vehicle stopped in the middle of the roadway. When the police officer arrived, he saw that the vehicle was over the city line. He approached the vehicle and saw that the driver was passed out with the car running. The police officer woke the driver, started a DUI investigation and ultimately arrested the driver for driving under the influence of alcohol.

The criminal defense lawyer filed a motion to suppress the evidence of the DUI claiming that the police officer did not have authority to pursue a DUI arrest since the incident occurred in a different city. There was no evidence of an agreement between the police departments in the two cities. The court agreed with the criminal defense attorney for the most part.

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A client recently came to the law firm of Shorstein, Lasnetski & Gihon as a result of a DUI (driving under the influence of alcohol or drugs) arrest in July of 2016. The arrest was actually based on an alleged DUI offense in Jacksonville, Florida from 2013. Most DUI arrests are made at the time the police officer claims to observe the suspect driving while impaired from alcohol or drugs so there is little delay between the alleged offense and the prosecution and court appearances for the charge.

However, in some cases, the police do not make an arrest immediately. For instance, in this case the investigation began when the client was involved in a motor vehicle accident. The client was not in a suitable condition to give a breath sample for the breathalyzer as the client was taken to the hospital to be treated for injuries. In those cases, the police will often attempt to obtain a blood sample from the DUI suspect at the hospital. While breathalyzer tests provide results immediately, blood samples used to test for blood alcohol content need to be sent to the crime lab for testing. As a result, the police usually do not make an arrest until the results come back a few weeks or a few months later, assuming the results show alcohol or drugs were found in the suspect’s system.

In this case, blood was taken from the client at the hospital and sent to the crime lab. The test results came back about a month later. They showed the client had a blood alcohol level of more than three times the legal limit of 0.08. At this point, the Jacksonville Sheriff’s Office obtained an arrest warrant for DUI. Three years later, the DUI charge was dismissed.

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Most DUI cases are initiated in a similar manner here in Florida. A police officer will claim to observe a driver violate some traffic law and then will pull that driver over. While the police officer will begin to check the driver’s license and consider writing a traffic ticket, if the police officer believes the driver is impaired from alcohol or drugs at some point, the police officer will likely abandon the traffic ticket process and initiate a DUI investigation. This will involve asking the driver questions such as where he/she has been and whether he/she has had anything to drink. This will likely transition into a request to perform field sobriety exercises. If the driver agrees to submit to them and the police officer subjectively determines the driver failed (which is likely since the police officer, who is the sole judge of the driver’s performance, already believes the driver to be impaired), then an arrest for DUI is likely.

A police officer is permitted to turn a routine traffic stop into a DUI investigation if there is specific evidence that the driver is impaired and the process does not take too long. Any time a police officer keeps a driver for a traffic ticket or criminal investigation, it is considered a detention under the law. A police officer can detain a person but only so long as necessary for a lawful purpose. If the purpose of the detention is to address a traffic violation, the police officer can only keep the driver for as long as it normally would take to write a traffic ticket. If there is specific evidence of a criminal violation, i.e., a DUI, the police officer can only keep the driver long enough for a normal DUI investigation and only so long as there continues to be evidence of a DUI.

As an example, in a DUI case just south of Jacksonville, Florida, a police officer pulled a vehicle over for a traffic violation. The police officer began addressing the traffic violation but then believed that the driver was impaired from alcohol. Instead of initiating a DUI investigation, the police officer called for another officer to come to the scene to handle the DUI investigation. Sometimes, a police officer will call for backup or another officer who is better trained to investigate DUI’s to take over a situation where the officer believes the driver is impaired. In this case, it took about 15 minutes for the backup officer to arrive and start the DUI investigation. The initial officer did nothing during that time, and the driver was left to wait for the second officer. Once the second officer arrived, he pursued the DUI allegation and ultimately arrested the driver for DUI.

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Most DUI (driving under the influence of alcohol or drugs) cases in Florida start with a traffic stop. A police officer will allege that he/she saw a driver commit some sort of traffic infraction. The police officer will pull the driver over. If the police officer believes the driver is impaired from alcohol or drugs, the police officer will initiate a DUI investigation. However, if the DUI arrest is valid, it must start with a legal basis for the initial traffic stop. If the police officer did not have a lawful reason to stop the driver, it is likely that the DUI case will be thrown out in court.

In a case near Jacksonville, Florida, a police officer was on patrol when he heard the defendant honk his horn several times without any apparent reason. The police officer conducted a traffic stop and gave the driver a ticket for improper use of his horn. The police officer then detained the driver for a DUI investigation because he found his conduct suspicious after the traffic stop. This DUI investigation ultimately resulted in a DUI arrest.

The criminal defense lawyer filed a motion to suppress based on the argument that the initial traffic stop was not lawful. Florida law requires every motor vehicle to have a horn in good working order and for drivers to use it to ensure the safe operation of the vehicle. The statute does not prohibit the use of the horn for any particular reason. A police officer does have the right to stop a driver for a legitimate public safety reason, but none existed in this case. Therefore, the stop would only be valid if the defendant had violated some traffic law. Honking one’s horn for no apparent reason is not such a violation. As a result the traffic stop was not lawful.

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When a driver is stopped by the police and the police officer initiates a DUI (driving under the influence of alcohol or drugs) investigation, the police officer will almost always ask the driver to submit to a breathalyzer test. The breathalyzer machine is designed to measure the amount of alcohol in one’s system. The legal limit in Florida is 0.08. What many people do not realize is that the police only offer the breath alcohol test or the blood alcohol test at the jail after the driver has been arrested for DUI. Therefore, it is fairly obvious that the police are not seeking the breath or blood alcohol test as part of an objective determination into whether the driver is impaired; the purpose of the breath or blood alcohol test is for the police to try to obtain additional evidence to support the DUI prosecution. In other words, no one is getting “un-arrested” after a favorable breathalyzer reading. The police officer has already concluded that the driver is guilty of DUI as a result of the arrest he/she has already effected.

While a person gives his/her implied consent to submit to a breathalyzer test when he/she agrees to accept driving privileges in Florida, some people refuse the test when the time comes. Some people do not trust a system that offers the test only in the jail after the arrest for a DUI and do not trust a police officer who did not trust a driver who claimed to not be impaired. Can the state require a person to give a breath or blood sample without a warrant if the driver refuses and punish a person for that refusal? Yes and no.

A recent United States Supreme Court case looked at two situations where drivers refused a breath test and a blood test and the state (not Florida) charged them with separate crimes for the refusal. If a person has a right to refuse a breath test and/or a blood test under the Fourth Amendment, then the state cannot prosecute someone for the refusal.

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In Florida, vehicular manslaughter cases are very serious. That seems obvious, but states and counties treat these crimes differently depending on how prosecutors’ offices and judges view them. Vehicular homicide often involves a defendant who did not intend to commit a crime and has never been in trouble before doing something with the most tragic results. Some places view this as worthy of probation. Others view it as worthy of long prison sentences. In Jacksonville, Florida, they are most often viewed in the latter manner and come with significant prison sentences.

Most vehicular homicide cases involve a person who causes a crash that results in death while being impaired from alcohol or drugs. In that case, the police officer will investigate the driver at the scene, do field sobriety exercises if practicable, request a breathalyzer test after the arrest at the jail or request that blood be drawn for testing if the driver goes to the hospital.

However, the state can charge a person with vehicular homicide even if no drugs or alcohol was involved with the crash. The law in Florida distinguishes accidents involving negligence from those involving reckless driving. Negligence cases normally involve a driver violating one or two traffic laws resulting in a crash. For example, if a person was speeding, ran a red light or pulled out in front of another vehicle and caused a deadly crash, that is likely to be considered negligence. Negligent conduct results in traffic tickets and lawsuits but not criminal charges. If a person’s driving goes beyond that kind of negligence and is particularly egregious, it can be considered reckless. For instance, driving 65 miles per hour in a 45 miles per hour zone and causing a crash is probably going to be considered negligence given how common speeding is. However, driving 85 mph erratically in a 45 mph zone in the rain certainly comes closer to recklessness and criminal behavior. Ultimately, the police decide if it is sufficient for an arrest, the prosecutor decides if it is sufficient to file criminal charges and a judge or jury decides if the defendant is in fact guilty of the crime.

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In Florida, when a person gets arrested for DUI (driving under the influence of alcohol or drugs), he/she is taken to jail and booked into the jail. Only after the arrest and being processed into the jail is the person offered a breathalyzer test to measure a person’s blood alcohol level. Never in the history of DUI arrests have we heard of someone being unarrested after blowing in the breathalyzer and getting a result under the 0.08 legal limit, or even after getting a result of 0.00. Therefore, we can assume the purpose of the breathalyzer is not to objectively determine if the defendant is impaired and guilty of DUI so much as for the police to try and acquire more evidence against someone they are already convinced is guilty o DUI.

A person in Florida who has been arrested for DUI can refuse a breathalyzer test, but that refusal may come with increased penalties including a license suspension or a separate criminal charge for multiple, separate instances of a refusal. However, many people arrested for DUI do not necessarily trust the police when it comes to a breathalyzer test and the true purpose of the breathalyzer test taken after a DUI arrest. In that case, a person arrested for DUI can ask the police officer for an independent blood test. This would be a test administered by an entity, like a private laboratory, that is completely separate from the police. Many police officers do not know that a DUI suspect has a right to request an independent blood test, and the police department has a duty to make reasonable accommodations for the independent blood test. This might include the obligation to give the suspect a phone call and a ride to a lab that is open. Police officers like making arrests, and they like when arrests are finished. They may not want to continue to process and drive the suspect to a lab for an independent test. However, if the DUI suspect makes the request and there is a reasonable way to contact a lab and get the suspect to the lab, the police officer may be obligated to do just that. Jacksonville, Florida has several lab testing companies that provide blood tests for people every day.

If a DUI suspect makes a reasonable request for an independent blood test and the police officer refuses to accommodate the DUI suspect, the criminal defense attorney can move to have the evidence of the police department’s breathalyzer test thrown out.