August 8, 2016

Jacksonville, Florida Law Firm of Shorstein, Lasnetski & Gihon Gets DUI Case Dismissed Despite Client Having a Blood Alcohol Level More Than Three Times the Legal Limit

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.

Why did the DUI charge get dismissed in court? In Florida, we have a statute called the statute of limitations. This statute compels the state to bring a prosecution against a suspect within a certain period of time, depending on the type of charge. The statute is designed to protect a defendant by forcing the state to be diligent in prosecuting defendants, thereby avoiding a situation where a defendant's ability to defend him/herself is compromised because of the passage of time which might result in the loss of witnesses or evidence and memories fading.

In this case, although the blood test results came back in mid-2013, the police did not arrest the defendant until almost three years later. However, the statute of limitations for a misdemeanor DUI of this nature is two years from the date of the alleged offense.

As a result, Shorstein, Lasnetski & Gihon filed a motion to dismiss the DUI charge based on the statute of limitations, i.e. because the state did not begin prosecuting our client for DUI until more than two years after the alleged offense. The statute of limitations is not always a black and white issue with regard to that two year period. If a defendant leaves the state of Florida or takes steps to hide from the police, the state can argue that the two year period is tolled. However, the state must show that they were diligent in searching for the defendant during the time period the two year period was running.

In this case, the state could offer no such proof. The Jacksonville Sheriff's Office obtained the warrant and then just let the warrant remain in the system. No efforts were undertaken to try and find the defendant and make an arrest. The police had our client's contact information and many other resources at its disposal to try to locate our client, who had not left Jacksonville, Florida during that time. Because neither the police nor the prosecutor's office made a diligent attempt to locate and arrest our client, they could not meet their burden under the Florida statute of limitations. Therefore, the motion to dismiss was granted, and the DUI case was thrown out.

We have used this statute of limitations in other cases where a warrant was obtained for a client but no effort was made to find the client during the statutory period. In those cases, as in this DUI case, the result is often a dismissal of all charges. If you think the statute of limitations might be an issue in your criminal case, feel free to contact us for a free consultation.

August 2, 2016

Excessive Delay in Investigation Results in Florida DUI Case Being Thrown Out

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.

The criminal defense lawyer filed a motion to suppress all of the evidence that was obtained after the second police officer arrived. The criminal defense attorney was successful, because the court agreed that the defendant was unlawfully detained. The police did not have a legal basis to detain the driver initially and then for another 15 minutes to wait for the second officer without continuing to develop evidence of a crime being committed. In other words, the police are allowed to detain a person while there is a continuing investigation that is producing legitimate evidence. The police cannot hold a person for an unreasonable period of time based on a suspicion of criminal activity that might be supported with evidence later. As a result, the DUI case was thrown out.

July 30, 2016

Florida DUI Case Thrown Out After Police Stop Defendant for Honking Horn

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.

Since the initial traffic stop was illegal, the arrest of the defendant for DUI was also illegal. Therefore, the DUI charge was thrown out.

July 3, 2016

In DUI Cases, Police in Florida Can Force a Breath Alcohol Test Without a Warrant but not a Blood Alcohol Test

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.

The Supreme Court held that the state does have a right to require a breath alcohol test without a warrant but not a blood alcohol test. Essentially, the Court noted the difference between blowing into a machine and being subjected to a needle and blood draw. The former is fairly unintrusive while the latter is quite invasive. Because the state has an interest in making sure people are not driving while impaired from alcohol, given the potential danger to the community, the Court will allow the state to intrude on a person without the need for a search warrant to further that interest. However, the intrusion is limited, and it ends before the state has a right to take blood from someone to test alcohol content without a warrant.

In effect, the police are not likely going to force someone to blow into the breathalyzer if a person refuses as part of a DUI investigation. But, this does allow the state to impose consequences for a breath alcohol test refusal, including charging a person with a separate crime. The state cannot bring similar charges for refusing a blood alcohol test.

May 1, 2016

Florida Vehicular Homicide Conviction Based on Speeding Alone Reversed

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.

In a vehicular homicide case near Jacksonville, Florida, a woman drove off the side of the road at a high rate of speed and hit a tree, killing her passenger. She was charged with vehicular homicide and convicted at trial. The criminal defense attorney appealed because it appeared the only evidence that she was reckless was her speed. There was no evidence that she was drunk or impaired from drugs. A accident reconstructionist for the state examined the evidence of the crash including the skid marks and gave the opinion that the driver was traveling at approximately 80 miles per hour in a 65 miles per hour zone. There was no other evidence of improper driving.

The vehicular homicide conviction was reversed. Reckless driving requires the driver to knowingly drive in a manner that is likely to cause death or serious bodily injury. That does not mean the state has to prove the driver intended to cause a crash or kill someone. The state must prove the driver intended to do something so dangerous that a deadly crash was likely. Intentionally drinking a lot of alcohol and driving or intentionally driving 100 mph in a 45 mph zone in the rain or in a residential areas with kids playing would likely qualify.

In this case, the court determined as a matter of law that speeding alone, especially when the speed was not too excessive, was not reckless. As a result, the state could not sustain a conviction for vehicular homicide without evidence of other reckless conduct.

March 2, 2016

A Person Arrested for DUI in Florida May Be Entitled to an Indepdendent Blood Acohol Test

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.

February 21, 2016

In Florida, Refusal to Submit to Field Sobriety Exercises Might Not be Admissible in DUI Case

When a police officer pulls a driver over in Florida and believes that the driver is impaired from alcohol or drugs, that police officer will begin a DUI investigation. We would like to say that this is an objective evaluation of whether the driver is impaired, but most often, it appears that the police officer has already formed a conclusion that the driver is impaired and then tries to develop evidence to support that foregone conclusion. Rather than viewing the evidence objectively, the police officer often draws conclusions with the preconceived notion that the driver is impaired and guilty of DUI.

In other words, two people can watch a person walk a straight line and come to different conclusions. But, if one of those people already believes the driver is impaired from alcohol or drugs, he will very likely view the evaluation differently from someone who has no idea there is a DUI investigation taking place. This is particularly try if the former person's job is to make DUI arrests.

During DUI investigations in Florida, the police officer will almost always ask the driver to participate in field sobriety exercises. These are completely voluntary and can be refused without a direct negative impact on one's driving privileges. Most importantly, they are completely subjective, meaning whether the driver passes or fails depends completely on the opinion of the officer, who already thinks the driver is impaired or he/she would not be going through this in the first place.

One way to level the playing field is to have the field sobriety test performance recorded on video. Not every police car has a video camera. If you get stopped for DUI in Florida, I would really think twice before agreeing to perform field sobriety tests if the police car does not have a video recording everything. You might think you performed perfectly, but without video, if the police officer said you failed, which is likely, then it is your word against his/hers and you may not want your freedom depending on that outcome.

If you do refuse to perform the field sobriety exercises, the prosecutor can normally use that refusal against you in court. The prosecutor can argue to a jury that you refused because you knew you were too impaired to pass them. Of course, if there was no camera, a DUI defendant can respond by saying he/she refused because there was no objective basis for evaluating the tests for a jury to see in court.

When a police officer asks a DUI suspect to submit to the field sobriety tests, he/she is supposed to tell the suspect that there may be negative consequences if the driver refuses, such as the state using the refusal against the suspect at the DUI trial. If the police officer fails to do that and the suspect had a logical reason to refuse the field sobriety tests other than being too impaired, the criminal defense lawyer can file a motion to exclude evidence of the refusal at the DUI trial. In some DUI cases in Jacksonville, Florida, this evidence of a refusal to submit to field sobriety exercises has been excluded from the DUI trial.

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 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.

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.

August 3, 2014

Florida DUI Defendant Unable to Get Case Thrown Out When Police Corrupt DUI Video

In DUI cases in Florida, many people assume that the police car has a video camera that records the DUI investigation and arrest. The DUI video can be a good thing for a defendant if the defendant looks good on the video, and it shows that the police officer is exaggerating when he/she says the defendant was drunk. On the other hand, the DUI video can be problematic for the defendant if it shows the signs of impairment that the police officer indicated in his/her report and will testify to at the DUI trial.

As prevalent as video is these days, it should not be too much to ask for the police to record these DUI encounters. Because DUI arrests are so subjective (if the police officer thinks you are impaired from alcohol, you are probably getting arrested for DUI), it is important to have a DUI video so a jury can decide for themselves if the defendant was impaired rather than relying on the subjective memory of a police officer about an encounter that occurred months ago. Many police cars in the Jacksonville, Florida area do not have cameras. When we handle DUI cases with no video, we place the blame on the state since they have the burden of proof in DUI cases, and they have the capabilities to put video cameras in their police cars or bring a police car with a video camera to the scene.

In some cases, the police car has a video camera, but it does not record properly, it only records part of the DUI encounter or the video is lost. In a recent DUI case near Jacksonville, Florida, the police officer stopped the defendant and turned on his video camera. He went through the usual DUI investigation and ultimately arrested the defendant for driving under the influence of alcohol.

During the criminal case, the criminal defense lawyer requested a copy of the police officer's video recording. When the criminal defense attorney viewed the DUI video, he saw that the video was useless because the police officer's vehicle had condensation on the windshield which obscured the camera's view. The police officer had left the air conditioning on in the vehicle causing the windshield to fog up. The police officer never checked the video camera during the DUI investigation to make sure it was properly recording the encounter, despite the fact that his department policy required him to do so.

Because the video was useless, the criminal defense lawyer filed a motion to dismiss the case. He argued that the police officer failed to follow department policy and basically destroyed critical evidence in the DUI case. The criminal judge agreed with the criminal defense attorney, but the appellate court reversed that decision. The appellate court said dismissing the case was too harsh a penalty where there did not appear to be bad faith on the part of the police officer. Instead, the appellate court told the criminal judge to consider less serious sanctions. For instance, the judge could prevent the state from introducing any evidence of the field sobriety examinations that were supposed to be recorded on video since the defendant could not use the video to refute the police officer's testimony.

In addition to whatever sanctions the judge imposed, the criminal defense lawyer could always argue that the state did not meet its burden of proof in a DUI case since the police officer messed up the video. This is an argument we always use in DUI cases where the police officer did not have a video camera during the DUI encounter. It is a stronger argument when the police officer had the camera but did not follow police policy and corrupted the evidence.

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.