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.

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.