April 16, 2014

For Underaged Drivers in Florida, the Legal Limit for a DUI is Much Lower

In Florida, the law establishes what it considers a legal limit for a driver's blood alcohol content. Most people know that the legal limit in Florida in DUI cases is 0.08. If a person blows a 0.08 or higher on the breathalyzer, that does not necessarily mean he/she will be convicted of DUI, but it is certainly evidence that state can use to try and prove a DUI case in court. How many drinks it takes to get to 0.08 depends on various factors including body weight, metabolism, food intake and other factors.

Most people are also well aware that the drinking age in Florida is 21. The rules in Florida regarding DUI's are different for a driver under the age of 21. For one example, the legal limit is much lower. In Florida, it is illegal for a person under the age of 21 to drive with a blood alcohol content of 0.02 or higher. It does not take much alcohol to get to a 0.02 blood alcohol content.

Many adults go out to dinner and have a drink or two and drive home assuming they are under the 0.08 legal limit. They certainly may be right. However, for people under 21, that will not help. The legal limit is such that just about any alcohol may subject them to a DUI charge. The idea of course, is that since people under 21 are not legally allowed to drink, they are not given the same leeway when it comes to a DUI charge. For adults over the age of 21, drinking and driving is not illegal as long as the driver is not impaired. For people under 21 years of age, any drinking and driving can easily subject them to a DUI conviction. Since the penalties for DUI convictions get increasingly worse as a person gets more than one, and much more expensive, it is important to avoid DUI's, particularly for younger drivers.

April 13, 2014

Florida Police Can Order Blood Draw in DUI Manslaughter Case Where There is Evidence of Impairment

In a normal DUI case in Florida, where there is no accident with serious injury or death, the police do not request or seek to obtain a blood sample of the defendant to test for alcohol content. The procedure is often different when a DUI case does involve an accident with serious injury or death.

In a DUI manslaughter case near Jacksonville, Florida, the defendant failed to yield and caused a crash that killed the other driver. A police officer responded to the scene and observed that the defendant appeared to be impaired from alcohol. The police officer testified that he smelled an odor of alcohol coming from the defendant and she was belligerent with multiple police officers. As a result, he ordered the defendant to submit a blood sample that was later tested and found to have an alcohol concentration above the legal limit in Florida of 0.08.

The criminal defense lawyer filed a motion to suppress the blood alcohol test results claiming the police officer did not have a right to order a blood sample taken from her and tested without a search warrant. The Florida implied consent law means DUI cases are treated differently when a serious injury or death is involved. In that case, if the police officer has probable cause to believe the person who caused the accident was under the influence of alcohol or drugs, the police officer has a right to order a blood draw and test it for alcohol content. Implied consent means a driver consents to this process when he/she agrees to accept a driver's license in Florida.

The state also argued that exigent circumstances existed that allowed the police officer to obtain the blood sample without a warrant. One exception to the general rule that the police must get a search warrant to search a person, including getting a blood sample, is the exigent circumstances exception. This exception applies when the police do not have time to get a search warrant and there is a risk that evidence might be lost. In the case of a DUI manslaughter, the court discussed how the police officer responding to the crash scene has to take time to sort out what happened and then has to evaluate the driver to see if there is evidence of impairment. Once that is done, it still may take a couple of hours to obtain a search warrant. Since alcohol continually dissipates in the blood, the evidence of blood alcohol content may be gone by the time the suspect driver has his/her blood drawn. In such cases, it is possible that the police could use the exigent circumstances exception to more quickly obtain a suspected DUI driver's blood without applying for a search warrant.

November 22, 2013

Defendant Arrested for DUI in Florida After Police Find Vehicle with Four Flat Tires

In Florida, most DUI investigations start after a police officer observes the suspect driving erratically or violating a traffic law. However, some DUI cases start fairly innocently after a police officer is just checking to make sure a person is alright. Normally, a police officer needs to have reasonable suspicion that a person is committing a crime or probable cause to believe he violated a traffic law before the police officer can stop a driver. However, in some cases, a police officer can investigate if the circumstances indicate a person may be sick or in some kind of trouble.

In a recent DUI case near Jacksonville, Florida, a police officer observed the defendant driving a vehicle that was coming to a stop on the side of the road because it had four flat tires. The defendant was not breaking the law in any way, but the police officer stopped to see if the defendant needed any assistance. After talking to the driver for a few minutes, the police officer claimed he smelled an odor of alcohol and observed the usual signs of impairment from alcohol that the police officers always put in their DUI arrest reports. The police officer then proceeded into a DUI investigation and ultimately arrested the defendant for DUI.

The criminal defense lawyer challenged the arrest claiming the police officer did not have a legal basis to investigate the defendant for DUI or any other crime. The defense challenge was denied. Even where the police officer has no specific evidence of wrongdoing on the part of a driver, the police officer can approach a driver if it appears that he/she may be in trouble or otherwise needs assistance. If, at that point, it appears that the driver is drunk or is involved in any other criminal activity, the police officer can proceed with a criminal investigation.

November 13, 2013

Can Police Officer in Florida Stop a Driver Outside of His/Her Jurisdiction?

In Florida, most DUI arrests occur after the police officer stops the driver for committing a traffic violation and then claims to make observations indicating the driver is impaired from alcohol or drugs. In the majority of those cases, the police officer works in the city or county where the initial stop is made and where the DUI arrest is made. For instance, most people stopped for a traffic violation and arrested for DUI in Jacksonville are stopped and arrested by a member of the Jacksonville Sheriff's Office (although the Florida Highway Patrol also can make stops as well). In Clay County, it is the Clay County Sheriff's Office.

Can a police officer make a stop and a DUI arrest outside of his/her jurisdiction in Florida? For instance, can a Jacksonville Beach police officer stop a driver and make a DUI arrest in the city of Jacksonville? It depends. Generally, the answer is no. A police officer is limited to making stops and making arrests in his/her own jurisdiction. One exception is that a police officer can continue to pursue a driver into the next county or city when the initial violation occurred within his/her jurisdiction. The police officer is not required to stop at the county or city line when pursuing a driver who has committed a traffic violation. There also may be agreements between neighboring cities and/or counties that allow a police officer in one city or county to come over into the next city or county to pursue a person suspected of committing a crime or violating the traffic laws. If that is the basis for an out of county/city stop and arrest, the agreement must be disclosed to the criminal defense attorney and presented as evidence at the trial. If the police officer failed to follow the rules allowing intercity or intercounty stops and arrests, the criminal defense lawyer may be able to get the DUI or other charges thrown out. Also, if the police officer was unreasonable in following the suspect into another city or county, that may be the basis for a motion from the criminal defense lawyer to throw out the DUI or other criminal charges.

October 28, 2013

Police Officer in Florida Does Not Need to Observe Suspect Driving Vehicle to Make DUI Arrest

In most DUI cases in Florida, the police officer observes the driver violate some traffic law, conducts a traffic stop and then moves into a DUI investigation from there. There is usually no issue with the state proving the element that the defendant was driving or in actual physical control of the vehicle. However, in DUI cases involving an accident, the police officer normally arrives after the fact and does not observe the defendant driving at all. In these cases, the police need to use other means to establish that the defendant was driving the vehicle or in actual physical control of the vehicle. In many cases, the suspect admits to the police officer that he/she was driving the vehicle, and that could eliminate that particular defense to the DUI charge. Of course, we do not recommend admitting elements of a DUI or any crime to a police officer, but people do it all of the time.

When there is no confession from the driver, the police and the state may try to use other means to prove the defendant was driving the vehicle. If the defendant owns the vehicle and was in the driver's seat when the police officer arrived, that is some evidence that he/she was driving the vehicle. Sometimes, the other person involved in the crash or other witnesses can testify they saw the defendant driving the vehicle. However, in some cases, there just is not sufficient evidence to prove the defendant was driving the vehicle when the police arrive after the fact, even if it seems obvious from a common sense standpoint.

Additionally, this is only relevant in a DUI case involving an accident. In such cases, the police officer can use other evidence, beyond what he/she personally observed, to prove that the defendant was driving the vehicle. In regular DUI cases without an accident, the police officer needs to actually observe the defendant driving or in actual physical control of the vehicle to proceed with a DUI charge.

September 30, 2013

Necessity Can be a Defense to DUI in Florida

it is rarely used, but people who commit a crime in Florida can use a necessity defense to avoid charges or be found not guilty of the crime. The defense is rarely used because it basically requires a defendant to establish that he/she needed to commit the crime to avoid the threat of harm or serious bodily injury to him/herself or others. That is not all. In addition to establishing that the crime needed to be committed, the defendant must also show that the defendant did not intentionally or recklessly put him/herself in a position where he needed to commit this crime, the defendant had no other reasonable option but to commit the crime, the harm the defendant was trying to avoid was worse than the crime committed and the defendant stopped the criminal conduct once the necessity was over. As you might expect, outside of a self defense type of scenario, which is its own specific defense, it is very rare for those factors to come together and work for a defendant.

However, when those factors can be argued, a defendant can use a necessity defense to all kinds of criminal charges, including driving under the influence of alcohol or drugs (DUI). In a recent DUI case near Jacksonville, Florida, a defendant attempted to use the necessity defense. A police officer saw him driving at a high rate of speed and driving erratically. The officer conducted a DUI investigation and arrested him for DUI. This was also the defendant's third DUI in 10 years which comes with enhanced penalties and can be charged as a felony DUI, which is punishable by up to 5 years in prison. At the trial, the defendant admitted that he was driving while impaired from alcohol but argued that he needed to drive in that condition.

The defendant's story, however, could use some work. He argued that his friend's cat was sick and he was the only person who could take it to the 24 hour veterinarian's office. The defendant had the right idea, but this excuse was not nearly sufficient for a necessity defense. As a result, he was convicted of DUI.

However, if an actual person was sick or injured and needed medical attention and a defendant could show that he/she needed to drive while impaired to get that person to the hospital, that could be a legitimate necessity defense to DUI. The state, of course, would likely fight back and cross examine the defendant about other options, but it is a defense that could win with a jury under the right circumstances.

September 4, 2013

Florida DUI Officer Could Not Stop Driver for Swerving in His Lane

In order for a DUI case to go forward in Florida, the initial stop of the driver must be legal. In other words, if the initial stop of the driver by the police officer is not a valid stop, all evidence that the police officer obtains after the stop should be thrown out, which would likely make proving the DUI case too difficult to proceed.

Most DUI cases start with a police officer indicating that he/she observed the suspect violate one or more traffic laws as he/she was driving. Usually, that is sufficient for a traffic stop. From there, the police officer will allege the standard signs of impairment (odor of alcohol, bloodshot and glassy eyes, slurred speech, and so on), and the DUI investigation goes on from there.

However, not all alleged driving conduct is a legitimate basis for a stop and DUI investigation. In a recent DUI case near Jacksonville, Florida, the defendant was driving in a lane that was narrower than normal. Depending on the type of road, driving lanes are normally 10 - 12 feet in width. The police officer in this DUI case testified that he saw the defendant swerve in his narrow lane to the point of driving on top of the lane dividing line. The police officer did not see him drive into the other lane or commit any other traffic violations such as speeding or running a red light. The police officer also did not observe the defendant make any sudden movements with the vehicle, cause any other vehicles to react to him or endanger anyone. The police officer pulled the defendant over for swerving in his lane and subsequently initiated a DUI investigation.

After the defendant was arrested and charged with DUI, the criminal defense lawyer filed a motion to suppress the evidence obtained during the DUI investigation because the initial stop was not valid. The initial stop in a DUI case must be based on probable cause to believe the driver violated the traffic laws or is driving while impaired from alcohol or drugs. Driving onto the dividing line is not a traffic violation that can justify a stop. If the driver was driving in such a way that he was endangering himself or others, that could be the basis for a traffic stop. However, that is a subjective determination based on the particular circumstances. In this case, there was nothing about driving onto the dividing line on a narrow road that suggested anyone was in particular danger, especially given the fact that no traffic laws were being broken.

As a result, the police officer was not justified in stopping the defendant. Therefore, the subsequent DUI evidence was thrown out, and the DUI case was dismissed.

August 22, 2013

The Danger of Submitting to the Field Sobriety Exams in a DUI Case in Florida

In just about every DUI case in Florida, the police officer is going to ask the driver to submit to a field sobriety exam. The police officer will not typically offer to the driver that he/she is free to refuse the field sobriety exam. The police officer wants the driver to submit to the field sobriety exam. it is a great tool police officers can use to support the DUI case against the driver.

If you are at the point in a DUI stop where the police officer is asking you to submit to a field sobriety exam, chances are the police officer thinks you are drunk. From here, the police officer is going to be observing you with the idea that you are drunk so that bias will certainly affect any subjective decision he/she makes about you. And make no mistake, the field sobriety exam involve completely subjective exercises. In other words, you pass or fail the exams if the police officer says you pass or fail the exams. And he/she already thinks you are drunk.

There are all sorts of problems with the field sobriety exam. Again, it cannot be understated that the sole judge of these exercises during the investigation is a person who already believes you are drunk. The exercises are often not recorded on video although it usually does not take much to have a video camera at the scene. If there is no video recording, it will always be your word that you passed the field sobriety exercises against the police officer's word that you failed. Even when there is a video camera at the scene, the field sobriety exercises often take place outside of the camera or in the dark so the person watching the video really cannot see what is going on. Some of the exercises are too difficult to see on the video anyway, such as the eye test and touching your finger to your nose.

The state loves to use testimony about a defendant's allegedly failed field sobriety test at DUI trial. There are always defenses and arguments attacking field sobriety exam testimony, but one way to avoid potentially damaging, subjective field sobriety exercise testimony is to politely refuse the request to submit to the field sobriety exercises during the DUI stop.

August 5, 2013

Florida DUI Evidence Thrown Out Where Police Did Not Read Implied Consent in Spanish

In Florida, when a police officer makes a DUI arrest, he/she will normally ask the suspect to submit to a breathalyzer test to be taken after the arrest. If the suspect agrees to take the breathalyzer test which results in a reading of 0.08 or higher, the state will certainly use that evidence against the defendant in the DUI case. If the suspect refuses the breathalyzer test, the state will attempt to use that refusal against the defendant in the DUI case by arguing that the defendant refused the breathalyzer test because he/she knew there would be a bad result. Of course, there are any number of reasons why a suspect would refuse a breathalyzer test after a DUI arrest, and he/she can argue those in response in the DUI case, but the state will normally have a right to make their argument as well.

However, in order for the state to use a breathalyzer refusal against a defendant in a DUI case in Florida, the police must follow certain rules. One such rule is that when explaining the breathalyzer test to the suspect, the police officer must inform the suspect that if he/she refuses to submit to the breathalyzer test, that refusal can be used against him/her at the DUI trial and result in a suspension of his driver's license. If the police officer fails to tell the suspect that, the state may not use the refusal against the defendant at trial.

In a recent DUI case near Jacksonville, Florida, a police officer stopped the suspect for driving without his headlights on. The police officer indicated that he observed signs of impairment about the suspect and initiated a DUI investigation. The DUI investigation then led to a DUI arrest. After the arrest and at the jail, the police officer asked the suspect if he would submit to a breathalyzer test. The suspect refused. The police officer then read him the implied consent information including the required information about a refusal of a breathalyzer test being used against the suspect at a DUI trial. The suspect was Hispanic. He understood some English, but his primary language was Spanish. He indicated that he did not fully understand the implied consent warnings. The police officer declined to re-read them in Spanish.

During the DUI case, the criminal defense lawyer filed a motion to suppress the evidence that the defendant refused to submit to the breathalyzer because he was not properly read the implied consent information. The court agreed with the defense. Since the defendant did not understand English very well, he was not properly informed of the implied consent information. Since the police officer did not read it to him in Spanish, when a Spanish version or interpreter was available, the state did not comply with the implied consent law.

The result was not that the DUI case was dismissed; the state could still go forward with the DUI charge. However, the state was restricted from using the evidence of the breathalyzer refusal against the defendant.

July 12, 2013

Police Must Observe Suspect Driving or in Control of Vehicle for DUI Arrest in Florida

In order for the police in Florida to make a valid arrest for DUI (driving under the influence of alcohol or drugs), a police officer must actually observe the DUI suspect either driving the vehicle or in actual physical control of the vehicle. Actual physical control of the vehicle is often characterized by observing the person in the driver's seat with the keys readily available or in the ignition.

This seems obvious as most DUI cases in Florida result from the police officer claiming to observe a person driving his/her vehicle in violation of some traffic law, stopping the person and then ultimately conducting some sort of subjective DUI investigation. However, there are cases where the police do not find and observe the suspect until he/she has actually stopped driving and exited the vehicle.

For instance, it is not uncommon for another citizen to observe a person driving erratically, call 911 and then give the 911 operator a description of the suspect vehicle. If the police officer locates the suspect vehicle and verifies with his/her own observation that the driver appears to be impaired while driving, the police officer can stop the driver and initiate a DUI investigation. However, if the police officer finds the suspect driver out of the suspect vehicle, never having seen him/her driving or in control of the vehicle, the police officer could not legally make a DUI arrest even if it is clear the driver is impaired from alcohol or drugs. An element of a DUI offense that the state has to prove is that the suspect was driving or in physical control of the vehicle. The police have to observe this element to make a DUI arrest. If the police do not observe it, even if a non-police witness does, it is not sufficient for a DUI arrest.

May 29, 2013

Federal Agency Recommends Lowering DUI Limit Almost by Half For Florida and Other States

DUI arrests in Florida come in all types. Many of them are completely the result of the subjective opinions and observations of a police officer who may be predisposed to believe you are driving while impaired from alcohol or drugs. Once that police officer has it in his/her head that you are driving drunk, basic psychology suggests that every subjective observation and interpretation he/she makes going forward is going to be tainted to some degree by that belief.

In most DUI cases in Florida, the police officer will request that the DUI suspect submit to a breathalyzer test. This test that purports to measure one's blood alcohol level is not based on the subjective interpretations of the police officer, but it does come with its own issues, such as the reliability of the breathalyzer machine and the breathalyzer's maintenance and operation. Of course, there are subjective elements to the breathalyzer stage of a DUI arrest. First, not everyone understands that the breathalyzer test is administered only after the police officer has arrested the driver for DUI. As you might expect, once the police officer goes through the trouble of making the DUI arrest, writing a report and driving the suspect all the way to the jail, we do not hear too many (as in none) reports of police officers "unarresting" the driver when he/she blows in the breathalyzer and the results are below the legal limit.

There is subjectivity in the breathalyzer process to the extent that different types of alcohol and different quantities of alcohol affect people differently depending on weight, metabolism rates, tolerance and other factors. There is also subjectivity in how and where the government decides to set the legal limit. Right now, the legal limit in Florida is 0.08. If a person blows in the breathalyzer and the results come back at 0.08 or higher, the driver can be assured that the state will likely file DUI charges. However, even where the suspect belows below 0.08, the state will often file DUI charges depending on the circumstances.

Some people will tell you that they are perfectly fine at or around a blood alcohol level of 0.08. Others will say that they get to 0.08 only after a couple of drinks. Despite the various inconsistencies among DUI cases, the federal government has suggested that states should lower the DUI legal limit to 0.05. If Florida did this, the obvious result would be more DUI arrests and more people in jail for DUI. Would fewer people drive drunk? That is not as clear.

Understand that DUI arrests are big business for governments. DUI arrests come with large fines and court costs that go to the government. People convicted of DUI often are required to go to classes, get evaluated for an alcohol problem and go through treatment. All of that means more money for bigger government.

No one would suggest that DUI laws are not important to prevent actually impaired people from driving and causing accidents. However, that should not mean that people should not fight DUI charges when they have had a drink or two and are perfectly fine to drive when faced with an overzealous police officer and government looking to feed into its increasingly profitable DUI business either.

May 8, 2013

Police Cannot Force a Blood Test in Standard DUI Case Without Search Warrant

In Florida, we have what is called implied consent which means that any person who obtains a driver's license in Florida consents to submit to an alcohol test where a police officer makes a valid stop and has probable cause to believe the person is driving under the influence of alcohol. This usually takes the form of a request by the police officer to blow into a breathalyzer at the jail after the person has been arrested for DUI. Whatever the reading is, the state will usually seek to use that evidence against the defendant in court in the DUI case. Where the breathalyzer reading is below the legal limit of 0.08, the police are not likely to unarrest the defendant, for lack of a better word.

A person who has been arrested for DUI can refuse the breathalyzer test. The police will not force a person to blow into the breathalyzer to get a breathalyzer result. In some cases, the police officer can request a test of his/her blood rather than a test of his/her breath. In a recent DUI case that went up to the United States Supreme Court, the DUI suspect refused to submit to a blood alcohol test and the police officer took his blood anyway to test it for alcohol content without a search warrant. The DUI case was appealed all the way to the Supreme Court.

The criminal defense lawyer argued that to take the defendant's blood was a search and seizure under the Constitution, and it was unreasonable without a search warrant signed by a judge. The state argued that there was an exception to the general rule that the police need a search warrant for a search and seizure. Generally, the state needs a search warrant to search someone, including taking their blood. However, there are exceptions to the search warrant requirement. If there are emergency circumstances, such as the risk of losing evidence if the search is delayed, the state may be able to conduct a search without a search warrant. In this DUI case, the state argued that the blood concentration dissipates as time goes by so the police officer needed to get the blood for alcohol testing as soon as possible.

The Supreme Court disagreed. They held that this argument was not sufficient to eliminate the search warrant requirement for blood in a DUI case. There are other circumstances where the state can take blood from a defendant in a DUI case, or test blood that was already taken by medical personnel, but in a standard DUI case where the DUI suspect refuses to give a blood sample, the police cannot force a blood sample without a proper search warrant.

April 17, 2013

Can Police Officer Stop Driver for DUI Out of His Jurisdiction in Florida?

In just about all criminal cases in Florida, a person will be arrested by a member of law enforcement who is properly working in that jurisdiction. For instance, if a person is speeding in Duval County (which is in Jacksonville) Florida and a police officer plans to make a traffic stop and possibly conduct a DUI investigation, the driver will likely be stopped by a Jacksonville Sheriff's Office officer. If a person commits a theft in Orange Park, Florida, he/she will likely be arrested by a member of the Clay County Sheriff's Office. There are exceptions, of course. The Florida Highway Patrol has jurisdiction all over the state so an FHP officer might stop a person in any city or county in Florida. Additionally, if a Jacksonville Sheriff's Office officer sees a person commit a crime in Duval County/Jacksonville and there is a car chase that goes north into Nassau County, the JSO officer will not likely stop at the county line and let the suspect get away. Of course, Nassau County police officers will become involved once the suspect gets into Nassau County.

There are other examples where a police officer can make an arrest for a crime outside of his/her jurisdiction. There is something in Florida called a Mutual Assistance Agreement between police agencies whereby police agencies can have their officers assist the others by formal agreement. If there is a proper Mutual Assistance Agreement, a police officer can make an arrest for DUI or other crimes if the police officer is complying with the Agreement. After such an arrest, the state has the burden of proving that the arrest was in compliance with the Mutual Assistance Agreement. The state has to actually present the formal agreement in court, prove that the agreement was in effect at the time of the arrest and prove that the police officer strictly complied with the terms of the agreement. If the state does not prove each of those elements, the arrest and any evidence obtained as a result of the arrest by the out of jurisdiction officer will likely be inadmissible. However, if the state can prove these elements, the fact that the police officer was out of his/her jurisdiction would likely have no effect on the state's case.

February 25, 2013

Florida DUI Case Thrown Out After Defendant Does Well on Field Sobriety Exercises

In just about all DUI (driving under the influence of alcohol) cases in Florida, the police officer is going to request that the driver submit to field sobriety exercises. These are very difficult coordination and balancing tests that are often given to the suspect in parking lots or on the side of the road in poor lighting. The suspect is often nervous because the police officer, who is the sole judge of the field sobriety tests, already thinks he/she is drunk or he/she probably would not have asked the driver to take the field sobriety tests in the first place. The conditions under which a DUI suspect takes the field sobriety tests are far from ideal, and some people are not good at difficult balancing and coordination tests under any circumstances.

Anyone is allowed to refuse a field sobriety test. There are no repercussions with the department of motor vehicles or the courts, such as a driver's license suspension, for refusing a field sobriety test. There may be very good reasons to refuse a field sobriety test- any injury, poor conditions, poor lighting, fatigue, nervousness, a police officer who seems overly aggressive or just a fear of not doing well based on all of the circumstances.

However, the best reason to refuse a field sobriety test may be that the field sobriety exercises are not videotaped. When a DUI suspect performs the field sobriety tests, there is only one judge, and that is the police officer who already suspects the driver is impaired from alcohol or drugs. The police officer will prepare a report, and if he/she does not think the driver performs well, he/she will write a very incriminating report. Why should a DUI suspect trust a police officer's completely subjective findings during a field sobriety test when that test may be a crucial part of the state's DUI case? If the police officer does not explain the tests well, how does a DUI suspect convey that to a judge or jury? Once the case gets to trial, it is the DUI defendant's word against the police officer's word. Because the police officer fails to bring a video camera to the DUI investigation, the defendant may be at the mercy of a biased police officer with no way of defending him/herself during a field sobriety test other than a he said/she said contest. Because of this subjective component to a DUI case, a driver should really think twice before taking a field sobriety test that is not recorded by a video camera.

In a recent DUI case south of Jacksonville, the defendant was stopped for speeding. When the police officer spoke to the defendant, he reported a strong odor of alcohol, bloodshot, watery eyes and slurred speech. These happen to be the same observations that seem to appear in every DUI arrest report in every case. The police officer asked the suspect to submit to field sobriety exercises. Because the police officer had a video in his car, the driver agreed. The driver did well on the field sobriety tests, but the police officer still arrested him for DUI because the police officer already decided he was drunk.

The DUI case was ultimately dismissed. The police officer had a right to request the driver to submit to the field sobriety exams based on his purely subjective observations, but because the defendant did well on the field sobriety tests, as confirmed only on the video, the judge threw the case out because there was no probable cause to arrest the defendant for DUI at that point. If there was no video, you can be sure the police officer would have reported that the defendant did poorly on the field sobriety tests. However, because there was a video, the defendant had some objective evidence to defend himself with in court, and this was the difference between a possible DUI conviction and a DUI case being thrown out.

January 22, 2013

Driver Stopped in DUI Case Even When He Did Not Violate Traffic Laws

Most DUI cases in Florida are initiated when a police officer sees a driver committing some sort of traffic violation and then pulls him/her over. If the police officer feels as if there is evidence that the driver has been drinking, the police officer will likely begin a DUI investigation. However, there are DUI cases where the defendant was stopped without violating any traffic laws.

In a recent DUI case south of Jacksonville, Florida, the driver drove down a road that was blocked by emergency vehicles farther down. Rather than turn around, the defendant kept driving down the road. The defendant later said that he felt like he had enough room to drive around the emergency vehicles. While this was not the smartest move when the driver had been drinking, he had not violated any traffic laws when he was stopped by the police. The polcie officer saw him driving down the road that was apparently blocked to see why the driver kept driving rather than turning around. After talking to the driver, the police officer initiated a DUI investigation and ultimately arrested him for DUI.

The defendant's criminal defense lawyer challenged the stop by arguing that the police officer did not have a legal basis to stop the defendant because no traffic laws were violated. In a DUI case, if the initial stop is not legal, then whatever evidence the police officer discovers after the initial stop will likely be thrown out. Likewise, without such evidence, the DUI case will likely be dismissed.

However, the court found that the stop was valid and the DUI case could proceed. In addition to stopping drivers for violating traffic laws, police officers can also stop drivers under the community caretaker doctrine. The court found that under these unusual circumstances, the police officer could stop the driver for the protection of the driver and/or the emergency personnel who had blocked the road. If there is a reasonable basis to stop a driver to make sure the driver and/or others are safe, then the stop may be legal. After the stop, if the police officer discovers evidence of DUI or other criminal activity, the police officer will be able to investigate further.

January 16, 2013

State Can Obtain Blood Test Results From Hospital in DUI Case, But Cannot Use Presumption of Guilt

When a person signs up for a driver's license in Florida, he/she agrees to consent to a breathalyzer test administered by the police if the police have probable cause to believe that person is driving under the influence of alcohol to the extent that his/her normal faculties are impaired. This is what is referred to as the implied consent law. By accepting the privilege of driving in Florida, the driver impliedly consents to take the breathalyzer test after a legitimate DUI arrest. Of course, people refuse the breathalyzer test for any number of reasons after a DUI arrest, and the police cannot actually force someone to take the breathalyzer test. However, if the DUI arrest was valid and the driver refuses the breath alcohol test, the state can administer greater penalties, such as a longer driver's license suspension, and the state can argue to the jury at a DUI trial that the driver refused the breathalyzer test because he/she knew he/she was drunk and would blow over the 0.08 legal limit. The defendant and criminal defense lawyer can argue other, perfectly innocent and valid reasons why he/she refused the breathalyzer test, and ultimately the issue would be for a jury to decide. In your average DUI investigation by the police, there may be perfectly valid reasons to refuse a breathalyzer test depending on how the police officer is conducting the DUI investigation and arrest.

In addition to a breathalyzer test, the police can obtain a blood sample for a blood alcohol test in some situations. This would not normally apply in a routine DUI arrest after a regular traffic stop where a breathalyzer test is feasible, but a blood test may be applicable after a serious accident that involves an injury or death. In the case of a serious accident, where the suspected driver goes to the hospital for serious injuries, the police may request a blood sample to test for blood alcohol content because the breathalyzer test at the police station is not practical. Additionally, the medical staff may take the suspected driver's blood and test it for alcohol content for medical reasons. In the former case, if the driver refuses the blood draw, the state can later argue at trial that the driver refused the blood draw because he/she knew that he/she was guilty of driving under the influence of alcohol. If the state gets the blood test results via subpoena after the blood is drawn for medical purposes, the implied consent law does not apply and the state cannot argue any presumption that the driver was impaired by alcohol. However, in either case, the state can subpoena blood test results from the hospital if the medical provider took a blood sample and tested it for alcohol for medical reasons.

January 3, 2013

State May Subpoena Medical Records and Blood Test Results in Certain DUI Cases in Florida

In most driving under the influence of alcohol (DUI) cases in Florida, the police officer will ask the driver to consent to a breath, or breathalyzer, test which uses the driver's breath to try and measure the driver's blood alcohol content. The legal blood alcohol limit in Florida is 0.08. Also, normally, the police officer cannot request that a driver take a blood test to determine the driver's blood alcohol content. The driver can request an independant blood alcohol test, but it is not something that the police officer typically mentions in a normal DUI investigation.

One exception is when the suspected drunk driver was involved in an accident with serious injuries or death that involves a hospital visit. In those cases, the police officer can request that the driver provide a blood sample to later test for alcohol content when the driver appears in the hospital for treatment and a urine or breath test is not practical. When a driver was involved in a serious accident involving injury or death, the police officer can request a blood draw to test for alcohol at the hospital.

What if the driver refuses, but the medical staff takes his/her blood for medical reasons? In a recent DUI case near Jacksonville, Florida, a driver was involved in a single vehicle accident and was taken to the hospital. The responding police officer suspected that the driver was impaired by alcohol and requested a blood sample to test for blood alcohol at the hospital. The driver refused to provide a blood sample for blood alcohol testing, but the hospital staff did take blood for medical reasons. Later, the State subpoenaed the blood taken by the hospital and all blood test results performed by the hospital.

The criminal defense lawyer for the DUI case objected saying the medical blood tests were not admissible because the driver refused and the implied consent law does not allow the State to force a blood alcohol test. However, the court disagreed with the criminal defense attorney and allowed the State to obtain the blood alcohol results that were done for medical purposes from the hospital and use them at the DUI trial against the defendant.

As a result, the State has two ways to get blood to test for a driver's blood alcohol level after a serious accident. The police officer can request a blood sample and the driver agrees, or the State can later get blood test results from the hospital via a subpoena if the hospital takes blood and tests it for medical purposes.

December 13, 2012

Florida Police Cannot Detain a Person For DUI Due to Sleeping in Vehicle

As an initial matter, people need to understand that they can be arrested for driving under the influence of alcohol or drugs (i.e. DUI) even if the police never see them driving a vehicle. If a person is in actual physical control of the vehicle, that is sufficient for a DUI arrest if the person is impaired. The classic case of actual physical control is when the police officer sees a person in his/her vehicle with the keys in the ignition, whether the vehicle is running or not. In those cases, the state has a valid argument that the defendant was in actual physical control of the vehicle and guilty of DUI although no one was actually driving the vehicle at the time.

However, the police cannot just detain a person who is laying down in or sleeping in a vehicle whether the keys are in the ignition or not. A common DUI case occurs when the police get a call about, or see, someone apparently drunk or asleep in a vehicle parked somewhere. The police officer will approach the vehicle and see that the person is asleep or passed out in the driver's seat. The police officer can assume the driver is passed out drunk, but without specific evidence that the person has been drinking or using drugs, the police officer cannot act on that assumption alone. The police officer can knock on the window and ask the driver some questions to investigate further. However, based on this evidence alone, the police officer cannot tell the driver to get out of the vehicle, tell the driver to take the keys out of the ignition or block the driver's vehicle with his/her own police vehicle.

The bottom line is the police officer cannot force someone to do something or give the person any indication that he/she cannot leave based on an assumption that the driver is impaired from alcohol or drugs. If, after a consensual discussion with the driver, the police officer develops evidence that the person has been drinking or using drugs (such as odor of alcohol or incriminating statements), then the police officer can ask the driver to turn off and step out of the vehicle. However, without specific evidence of impairment, detaining the driver for further investigation or arresting him/her for DUI is improper and should result in the DUI case getting thrown out.

October 25, 2012

DUI Roadblocks Are Legal in Florida But They Must Follow Certain Requirements

Every now and then the police will set up DUI checkpoints or roadblocks late at night on the weekends. At these roadblocks, the police will stop a vehicle at certain specified intervals (for instance, every 5th vehicle) and check for a driver's license, insurance and possible impairment from alcohol or drugs. These DUI checkpoints are often set up in areas where people are driving from bars or clubs. Years ago, criminal defense lawyers challenged whether these DUI roadblocks are Constitutional as they are impositions on a person's freedom without any prior indication that the person is committing a crime or breaking a traffic law. The courts have found that DUI roadblocks are legal but only if they follow certain specific rules and minimize the restraint on a driver's freedom. One reason for the strict rules for DUI checkpoints is to take a lot of the discretion away from the police officers. The courts want to avoid a situation where the police officers have discretion to do whatever they want at a DUI checkpoint.

In a DUI case south of Jacksonville, Florida the defendant was arrested for DUI after she was stopped at a DUI checkpoint. The criminal defense lawyer filed a motion to suppress the stop of the defendant, and the evidence of the DUI obtained after the stop, because the DUI roadblock was not conducted according to the strict requirements. Before every DUI checkpoint is set up, the police must prepare a set of written guidelines that will be followed during the DUI roadblock to make sure neutral criteria will be used for stopping the vehicles. In this case, the guidelines were submitted, but they indicated that the police were going to stop every third vehicle unless changed by the supervisor. This is not a legal DUI roadblock. The whole idea is to avoid the use of discretion by the police officers to stop whichever cars they want. If the supervisor can change the rate of stopping vehicles without giving a reason, it gives the police too much discretion. Additionally, the police did not follow the regulations because the DUI roadblock ended at a different time than previously indicated and they began stopping every vehicle after a few hours.

Because the police did not submit proper DUI checkpoint guidelines and did not even follow the ones they did submit, the DUI checkpoint was not legal and the defendant's DUI case was thrown out.

October 22, 2012

A Person in Florida Can Be Convicted of DUI Even When Vehicle is Inoperable

In Florida, DUI arrests are most commonly made by police when they observe someone driving erratically or violating a traffic law, initiate a traffic stop and observe signs that the driver is impaired from alcohol or drugs. However, many DUI arrests result from situations where the police officer never sees the person driving at all. A person commits a DUI when he/she operates a motor vehicle while his/her normal faculties are impaired from alcohol or drugs. A DUI can also be committed when a person is in actual physical control of a vehicle while impaired. Actual physical control can mean many things, but it generally means that the person has the ability to operate the vehicle, even if he/she is not doing so when encountered by the police officer. A defense to being in actual, physical control of the vehicle, and the DUI charge itself, is that the vehicle was not capable of being operated. As an obvious example, if the police officer approached a person drunk in the front seat of a vehicle but the engine had been removed and was being worked on in the garage, the vehicle would not be operable and a DUI charge would not be appropriate.

Cases that are less clear involve the police coming upon a person who is having some sort of car trouble on the road. In a DUI case near Jacksonville, Florida, the police officer approached the defendant's vehicle that was stopped on the street due to a flat tire. The officer ultimately arrested the defendant for DUI. The defendant's criminal defense lawyer defended the case by arguing that the vehicle was inoperable due to the flat tire. The defendant lost the DUI case because he apparently admitted to the police officer that he was driving the vehicle up to the point of the flat tire and after he was drinking at the bar.

This was a situation where the defendant talked himself into a DUI conviction. Because the defendant's statements indicated that the vehicle was operable just prior to the blown tire, the conviction for DUI was upheld.