Jacksonville Criminal Lawyer Blog

In Florida, in order to be charged with DUI, a person does not necessarily have to be driving the vehicle while impaired from alcohol or drugs. It is sufficient under the Florida DUI laws for a person to be in actual physical control of a vehicle. For instance, if the defendant was impaired while in the driver's seat with the keys in the ignition, this is sufficient for actual physical control even if the vehicle was in park and not moving.

In another recent DUI case near Jacksonville, Florida, a police officer responded to a call of a possible impaired driver and saw the defendant exit his vehicle from the driver's side door with the keys in his hands. After administering field sobriety tests to the driver, the police officer arrested him for DUI. The criminal defense lawyer moved to have the DUI case thrown out arguing that the defendant was neither operating the vehicle nor in actual physical control of the vehicle. However, the court disagreed and found that the evidence that the police officer observed the defendant exit the driver's side door with the keys was enough to establish actual physical control of the vehicle under the Florida DUI laws.

Clearly, the courts in Florida may interpret "actual physical control" very broadly under the DUI laws. If you have been drinking and are impaired, the best thing to do is to avoid your vehicle altogether.

According to a recent survey, Jacksonville, Florida ranks fourth among all cities in the country in DUI (driving under the influence of alcohol or drugs) arrests. The survey was conducted by Insurance.com. It is not clear if the numbers reflect DUI arrests or DUI convictions, but it appears that it refers to DUI arrests as the report notes that there were 3,708 people arrested for DUI in 2010.

We do not know how they do things in other cities, but this does not come as much of a surprise. We have seen many DUI cases, and one thing is clear. Once that police officer decides in his/her head that a driver is impaired by alcohol or drugs, that police officer is going to make a DUI arrest regardless of what the driver says or how he/she does on the field sobriety exam. People in Jacksonville, Florida need to understand that they have a right to remain silent and do not have to answer questions about where they have been, what they have been doing, and if they have had anything to drink. Additionally, they have a right to refuse the field sobriety tests which are a completely subjective and difficult set of balance and coordination tests that can be difficult for anyone under any circumstances. With field sobriety tests, whether a person passed or failed is solely based on the subjective opinion of the police officer who obviously already thinks the driver is impaired or he/she would not have asked the driver to take the test in the first place. If the field sobriety tests are not videotaped, as many are not, the driver has no way to defend him/herself in court when the police officer testifies that the driver failed the field sobriety tests at a DUI trial.

Jacksonville, Florida police have indicated that they intend to make more DUI (also referred to as drunk driving or driving under the influence) arrests this weekend as it falls on the New Year's holiday. People in the Jacksonville, Florida area can expect Jacksonville Sheriff's Office and Florida Highway Patrol officers to be on the lookout for people they suspect are driving under the influence of alcohol or drugs. They are also setting up DUI checkpoints in the Jacksonville area.

Of course, for anyone who plans to drink this weekend, having a designated driver or taking a cab is always the best option. However, the other side of the coin in these situations where the police are making a concerted effort to make DUI arrests is that police often tend to draw conclusions first and work on the evidence later when they believe someone is DUI. A DUI arrest is very subjective. A DUI arrest is often the result of a police officer who is already looking for DUI suspects deciding that a person is impaired from alcohol and then making very subjective observations that are consistent with that foregone conclusion. These same observations that police officers write in their reports over and over again include: odor of alcohol, bloodshot and glassy eyes, slurred speech and swaying. Of course, all of those are subjective conclusions, and none of them prove that a person is impaired. From there, the police officer will likely ask the DUI suspect to participate in the field sobriety exercises. These are very difficult coordination and balance exercises administered under difficult conditions when the suspect is often very nervous. Whether a person passes these exercises is completely based on the subjective opinion of the police officer who obviously already thinks the suspect is impaired or he/she would not have asked the DUI suspect to take the field sobriety tests in the first place. Under those circumstances, it may not make sense to agree to take the field sobriety tests, which are completely voluntary.

The message from the Jacksonville police is a good one- if you are going to drink, a designated driver or taxi is the best option. However, we have handled a lot of DUI's and see how subjective the DUI arrest can be on a normal weekend. When the police make a statement that they are focusing on DUI's during a particular weekend, the risk of more questionable DUI arrests is greater.

If you have been stopped for DUI or arrested for DUI and have questions about your rights and defenses, feel free to give us a call any time, 24 hours a day for a free consultation to learn your rights.

In a recent DUI case south of Jacksonville, Florida, the defendant was the subject of a citizen's arrest until the police officer arrived and formally arrested the defendant for DUI. The citizen was sitting on a bench when the defendant pulled up, stopped and got out of her vehicle. The citizen noted the defendant was clearly disoriented and appeared intoxicated. The citizen then took the keys from the defendant to prevent her from driving further. This was a seizure under the Florida search and seizure laws. Once she retained the defendant's keys, the citizen called the police. The police officer arrived, spoke to the citizen about the defendant's apparent intoxication and began a DUI investigation. After determining the defendant was drunk driving, the police officer arrested her for DUI. The defendant ultimately took a breathalyzer test which showed a very high blood alcohol content level.

The defendant's criminal defense lawyer filed a motion to suppress the evidence of the breathalyzer test and the police officer's observations of her signs of impairment. The criminal defense attorney argued that the citizen's arrest was improper and all evidence obtained thereafter was inadmissible. The court disagreed and found that this was a proper citizen's arrest. Because the citizen observed the defendant show signs of impairment and acted properly in taking the keys from her to prevent her from driving, the citizen's arrest was proper. The defendant was not unlawfully seized, and the police were permitted to conduct their DUI investigation and make a DUI arrest.

One often overlooked element of a DUI ("driving under the influence of alcohol or drugs") charge is the requirement that the state must prove beyond a reasonable doubt that the defendant was either driving the vehicle or in actual physical control of the vehicle while impaired from alcohol or drugs. Most of the time, this is not an issue as most DUI cases result from a traffic stop where the police officer observes the driver allegedly commit some traffic violation. However, in DUI cases involving accidents, this can be a significant issue that can result in DUI charges being dropped.

Unlike with traffic stops, accidents often occur without observation by a police officer, and possibly without any witnesses at all. In accidents with other drivers, sometimes the other driver does not actually see who was driving the vehicle that hit his/her vehicle. In single vehicle accidents, the driver is usually out of the vehicle by the time the police officer arrives. In these cases, it may be fairly obvious who was driving. However, assumptions are not sufficient to prove the defendant was driving beyond a reasonable doubt. Of course, once the police officer arrives, he/she will take a statement from the driver who will likely disclose the fact that he/she was in fact driving the vehicle. However, there is a good chance this admission by the driver is not admissible in a DUI trial.

In Florida, there is something called the accident report privilege. This privilege requires people involved in an accident to tell the police officer what happened in the accident. Because there is a requirement to talk to police, any statements a driver makes about the crash during the accident investigation cannot be used against him/her in a criminal case. Therefore, if the only evidence the police have that the DUI suspect was driving prior to the accident came from the driver's own statements while the police officer was investigating the accident, that statement cannot be used against the DUI suspect and the DUI charges should be dismissed.

In Florida, in order for the police to stop a person and investigate him/her for a crime that is not a DUI, the police need "reasonable suspicion" that the person is involved in criminal activity. When the information comes from an ordinary citizen reporting the suspicious behavior to the police, the police must observe the suspect and confirm through their own observations conduct that is consistent with the tip and consistent with criminal activity. In other words, if a person calls police and says the guy in the blue shirt and black pants on the corner of Main Street and 1st Street is selling drugs, the police cannot stop him to investigate just because they see a guy wearing a blue shirt and black pants on that exact corner. The police also have to verify conduct consistent with criminal activity. For instance, this might include an observation that he was making quick, hand to hand transactions with people ion the street.

However, Florida courts state a lesser standard for stopping someone to investigate for a DUI crime. In a recent case about a DUI arrest near Jacksonville, Florida, the police stopped the driver based on tips from two citizens that the driver was drunk. Upon seeing the driver, they stopped him to investigate him for DUI without observing any evidence that the driver was in fact drunk. They ultimately arrested him for DUI. The court upheld the stop and stated that in DUI cases, the police only need a "founded suspicion" that the driver is intoxicated and impaired. The court acknowledged there is a somewhat relaxed standard for DUI stops because of the valid safety concerns with DUI cases (as opposed to other crimes that present valid safety concerns).

With DUI cases in Florida, a lot of people assume that the defendant is arrested only after he/she has submitted to a breathalyzer test that showed the defendant was drunk driving or impaired by alcohol. Otherwise, people understand that an arrest before a high breathalyzer reading is likely to be based on the completely subjective assumptions of the police officer who already assumes the driver is drunk when he/she is formulating his/her opinions.

But that is not how it works. Breathalyzer tests are administered only after the defendant is arrested based on the subjective conclusions of the police officer. With many DUI arrests, it is a case of, arrest first (based on assumptions) and get the evidence later.

In a recent DUI case south of Jacksonville, Florida, the police officer observed a driver swerve out of his lane. The police officer ran a check of the driver's tag and learned that he had an outstanding warrant for driving with a suspended license. The police officer stopped the driver, arrested him for driving with a suspended license and took him to the police station. Only after the driver arrived at the police station did the officer indicate he noticed an odor of alcohol, slurred speech, bloodshot and glassy eyes and all the standard things that go into every DUI police report. The police officer asked the driver to take a breathalyzer or breath alcohol test. The driver refused. At that point, the police officer arrested the driver for DUI.

The criminal defense lawyer was able to have the driver's refusal to take the breath alcohol test thrown out because the request was made before he was actually arrested for DUI. Had the driver agreed and submitted to the breathalyzer test, the results would have been thrown out of court because the law requires a person to be arrested for DUI before he/she takes the breath alcohol test.

In most DUI cases in Florida, when the polcie officer makes observations indicating the driver is impaired by alcohol, the police officer will ask the driver to submit to a breathalyzer test which tests a person's blood alcohol level after the driver blows into the breathalyzer device. In some circumstances, the breathalyzer test is not practical, and the police officer investigating a DUI can request the driver submit to a blood test to test the driver's blood alcohol level. This normally occurs after the driver is involved in an accident and suffers injuries making the breath test impracticable. The blood draw for the blood alcohol test is performed at the hospital where the driver has been taken to treat the injuries he/she suffered in the accident.

However, just because a person is in what appears to be a serious accident does not automatically allow the police officer investigating the driver for DUI to take the driver's blood and have it tested for alcohol content. In a recent DUI case south of Jacksonville, Florida, the defendant lost control of her vehicle and flipped it over on the highway. To the responding police officer, it appeared to be a serious accident where a driver would normally be injured. When the polcie officer arrived, the driver was being loaded into the ambulance to be taken to the closest hospital emergency room. The police officer followed the driver and the ambulance to the hospital and made contact with the driver. The police officer indicated that the driver smelled of alcohol, had slurred speech and exhibited other signs of impairment from alcohol. However, the driver made it clear that she was not injured, had refused medical treatment and did not want to go to the hospital in the first place. At the hospital, she did not receive any medical treatment.

According to the police officer, the breathalyzer test could not be done at the hospital so he asked the driver to submit to a blood test to test her blood alcohol level. The driver agreed and submitted to the blood test. The blood test came back with a blood alcohol level above 0.08, the legal limit.

The criminal defense lawyer filed a motion to exclude the evidence of the blood alcohol test because the police officer did not follow the implied consent laws as they relate to blood tests. Blood tests are permitted only when the breath test is not practical. The breathalyzer test is not practical when the driver has been seriously injured and has to be taken to the hospital for treatment. In this case, the driver was taken to the hospital, but she was not seriously injured, nor was she trated. The police officer failed to support his contention that the breathalyzer test was not practical. As a result, he did not follow the law by requesting the blood test, and the blood alcohol test results were thrown out.

In a recent DUI case south of Jacksonville, Florida, a police officer stopped the defendant for driving out of control and in an abnormal driving pattern. More specifically, the police officer testified that the defendant was driving back and forth in his lane and striking the lane markers. At some point, after driving over to the divided white lines, the defendant abruptly swerved back towards the middle of the lane. However, the driver never drove over into the adjacent lane. The police officer concluded that the driver was impaired and pulled him over allegedly to see if he was fine to continue driving. After the traffic stop, the police officer conducted a DUI investigation, had the driver perform field sobriety tests and arrested him for DUI.

The criminal defense lawyer filed a motion to suppress evidence of the police officer's observations of impairment and the results of the police officer's field sobriety examination. The criminal defense attorney argued that there was no actual traffic violation so the police officer did not have a legal basis to pull over the defendant.

Ordinarily, a police officer may only conduct a traffic stop of a defendant, whether to write a traffic ticket or investigate for a DUI, if the police officer observes the driver commit a traffic violation. However, there are exceptions to this general rule. One exception is referred to as the community caretaker doctrine in Florida. This says that a police officer may stop a vehicle without reasonable suspicion of criminal activity if the officer believes it is necessary to protect public safety. A police officer can stop a driver if he/she observes abnormal driving if there is reason to believe the driver may be ill, tired or impaired and a risk to others on the road. These traffic stops are allegedly unrelated to a criminal investigation, but they can turn into a DUI or other criminal investigation if the police officer observes signs of impairment from alcohol and/or drugs or other evidence of criminal activity.

When a driver is weaving within his/her lane of travel, no traffic laws are being broken. If no traffic laws are being broken, the police officer generally cannot pull the driver over. However, Florida law does allow for an exception where the police officer observes the driver weaving within his/her lane even if there is no immediate threat to other vehicles or pedestrians. If the police officer observes abnormal driving by the driver that he/she reasonably believes could cause a safety hazard to others, the police officer may pull that driver over to investigate whether the driver has some issue preventing him/her from driving safely. If the driver turns out to be impaired from alcohol and/or drugs, the police officer may be permitted to initiate a DUI investigation and arrest the driver for DUI.

In Florida, a DUI charge (driving under the influence of alcohol or drugs) is normally going to be charged as a misdemeanor crime. While the Florida legislature continues to make minimum penalties for DUI harsher, jail time for a misdemeanor crime is limited to a maximum of one year and most people charged with any misdemeanor are not facing anywhere near that amount of jail time, if any. However, if a person has three prior DUI convictions, the state does have the option of charging the fourth DUI as a third degree felony. Third degree felonies carry a maximum penalty of 5 years in prison, and it is not uncommon for someone to go to jail or prison when charged with a third degree felony if he/she has a prior record.

In a recent DUI case south of Jacksonville, Florida, the state charged the defendant with felony DUI because the defendant had three prior DUI convictions. However, the state cannot use just any prior DUI conviction to justify the three prior DUI convictions necessary to charge felony DUI for the fourth DUI. There are restrictions with the use of prior DUI convictions. For instance, if the defendant was facing jail time, could not afford a lawyer and did not have adequate legal representation during the prior DUI case, that prior DUI conviction cannot be used as one of the three prior DUI's necessary to make the fourth DUI a felony.

In this case, one of the defendant's prior DUI convictions went all the way to the mid-1980's. The criminal defense lawyer filed a motion to dismiss the felony DUI charge because the defendant indicated he did not have enough money to hire a criminal defense attorney back then, did not waive his right to a criminal defense lawyer and was not appointed a criminal defense attorney by the court for the prior DUI in the 1980's. Because the prior DUI case was so old, the files were destroyed, and the state was not able to prove that the defendant either had a criminal defense lawyer when he was convicted of the prior DUI or waived his right to a criminal defense attorney in that case. Because the state could not prove the necessary requirements to use one of the the prior DUI convictions, the State was not permitted to charge the fourth DUI as a felony.

Many people believe that a person can only get arrested for driving under the influence of alcohol or drugs, i.e. DUI, if he/she is actually driving the vehicle while impaired. However, this is not the case. In Florida, the DUI laws cover a person operating the vehicle or "in actual physical control" of the vehicle. This latter phrase covers incidents where a person is in control of the vehicle and has the capability of driving it, even if he/she is not actually driving it at the time. One common example is where a police officer approaches a person who is sitting in the front seat of the vehicle with the keys in the ignition. If the person is drunk or otherwise impaired by alcohol or drugs, the police officer can arrest him/her for DUI. This situation often arises where a person parks his/her vehicle and falls asleep or passes out in the front seat with the keys in the ignition.

However, in a recent DUI case south of Jacksonville, Florida, the police received a call of a person passed out in his vehicle. When the police officer arrived, he saw the person passed out in the back seat of the vehicle. The keys were in the front seat. The police officer determined that the person was drunk and arrested him for DUI. The DUI charge was ultimately thrown out. Because the defendant was passed out in the back seat, there was no evidence that he was capable of operating the vehicle even though the keys were inside the vehicle. The state could not prove that the defendant was in actual physical control of the vehicle so the DUI charges could not stand.

In Florida, where the police officer has probable cause that a person is drunk driving or driving under the influence of alcohol (i.e. DUI), the police officer has a right to ask the driver to submit to a test to measure the alcohol content of a person's blood. In Florida, driving with a blood alcohol content of 0.08 or more is illegal. Most often, the police officer will ask the DUI suspect to take a breath test, or breathalyzer, to determine the person's alcohol level. If the suspect refuses the breath test/breathalyzer, the DMV may increase the driver's license suspension and the state will attempt to use the driver's refusal to submit to the breathalyzer as evidence against the suspect at the DUI trial, i.e. the state will argue the DUI suspect refused the breath test because he/she knew it show a high reading.

In some cases, the police officer investigating the DUI will seek to get a blood test to determine the driver's blood alcohol level as opposed to a breath test. The state can seek a blood test of the DUI suspect where it is not practical to administer the breathalyzer. For instance, if the DUI suspect is involved in an accident and is injured to the extent that he has to go to the hospital, a breath test may not be possible. In that case, the state is authorized to get a blood test from the DUI suspect. If the DUI suspect is in a position to refuse and does so, the state can use the DUI blood test refusal against the suspect at his DUI trial.

However, if a breathalyzer test is a viable option for the police officer and DUI suspect, the police officer is not permitted to seek a blood test. The DUI suspect can request a blood test, but the police officer is not allowed to substitute the blood test for the breath test at the police officer's own discretion. If the police officer requests the blood test when the breathalyzer is a viable option and the DUI suspect refuses, the state will not be permitted to use the DUI suspect's refusal of the blood test at the DUI trial, and the state would have to try and prove its DUI case without mention of any blood or breath test to measure the DUI suspect's blood alcohol content.

In most DUI cases, when a police officer claims to observe signs of impairment of a driver, the police officer will request the suspect to take a breathalyzer test to determine if the driver is driving under the influence of alcohol (i.e. DUI). Florida law allows a police officer to request that a driver take a breathalyzer test if the police officer makes a valid arrest for DUI based on his/her observations that the driver is driving while impaired. The driver can refuse to submit to the breathalyzer. If the driver refuses to take the breathalyzer test, the state can use the breathalyzer refusal against the driver at the DUI trial.

If the driver submits to the breathalyzer and the police officer is not satisfied with the breathalyzer results, the police officer cannot then request a urine or blood test without specific evidence that the driver is impaired by drugs rather than alcohol. A breathalyzer is supposed to test the person's blood alcohol content. The breathalyzer cannot determine if a driver has used drugs. A urine or blood test can test for the presence of alcohol and/or drugs in a person's system. However, if the police officer requests the breathalyzer test, the officer cannot then request the urine or blood test to look for drugs just because he/she did not like the breathalyzer results.

In a recent DUI case south of Jacksonville, Florida, the police officer saw the suspect stopped at a traffic light. The light turned green and red and then green again, but the suspect never drove forward. The police officer approached the vehicle and saw the driver laying down in the driver's seat. The officer said he observed signs of impairment and conducted field sobriety tests. The officer said the suspect failed the field sobriety tests and arrested the suspect for DUI. At the police department, the suspect submitted to two breathalyzer tests. Both breathalyzer tests yielded results under the legal limit of 0.08. At that point, the police officer claimed that he thought the suspect might be under the influence of drugs and requested the suspect submit to a urine test. The suspect refused. The state ultimately tried to use the suspect's refusal of the urine test against the suspect at his DUI trial.

The court said the state was not permitted to use the suspect's refusal of the urine test against him at the DUI trial. The state was limited to trying to prove the DUI with the officer's testimony of his observations and the two breathalyzer tests under the legal limit of 0.08. Because the police officer was not able to articulate any specific reasons why he thought the suspect was impaired by drugs, as opposed to just alcohol, the police officer was not allowed to request the urine test. Since the police officer's urine test request was improper, the state could not use the urine test refusal against the defendant at the DUI trial.

In Florida, when a person obtains a driver's license, he/she consents to submit to a breathalyzer test when a police officer has probable cause to believe the person is driving while impaired by alcohol and makes a DUI arrest. If the person refuses to submit to a breathalyzer test during a DUI arrest, that person is subjected to a longer driver's license suspension and the evidence of the breathalyzer refusal can be used against him/or in the DUI case. Additionally, a second breathalyzer refusal during a subsequent DUI arrest in Florida is a misdemeanor crime.

When a person refuses the breathalyzer test and goes on to have a DUI trial, the state will always bring out the fact of the refusal and argue to the jury that the defendant refused the breathalyzer because he/she knew it would show that he/she was impaired by alcohol. Of course, the criminal defense lawyer and the defendant can refute that assumption with their own arguments as to why the defendant refused the breathalyzer.

However, in a recent DUI case west of Jacksonville, Florida, the state attempted to do something quite different. In this DUI case, the defendant refused to submit to the breathalyzer. Apparently, the defendant had a prior DUI arrest and conviction many years before where he actually submitted to the breathalyzer test. At the trial, the defendant was asked by the prosecutor why he refused the breathalyzer test, and the defendant said that he did not trust the breathalyzer test. The state then brought out evidence of the defendant's prior DUI case where he did submit to the test.

Normally, at a trial the state cannot bring out evidence of other crimes the defendant committed in the past. This is considered to be overly prejudicial evidence. In any trial, the question is whether the defendant committed the crime(s) for which he/she is currently on trial, not other crimes in the past. Showing the jury that the defendant committed similar or other crimes in the past tends to take the focus of the jury away from the particular evidence in the case and places the defendant in a bad light with the jury.

In this case, the defendant's DUI conviction was thrown out. The state improperly brought out evidence of the defendant's prior DUI case that was irrelevant to the DUI case that was the basis for the trial and unnecessarily prejudicial to the defendant.

Most people understand that the police in Florida cannot seize a person without specific facts indicating the person is, was or is about to be involved in criminal activity. However, what is considered a seizure of a person is not always clear. It does not just mean an arrest. It can also mean commanding a person to do something he/she was not intending to do. For instance, if a police officer tells a person to get out of his/her car or to move his/her car, that can be a seizure that is not proper without a legal basis for making the request.

In a recent DUI (driving under the influence of alcohol or drugs) and possession of cocaine case south of Jacksonville, Florida, the defendant was trying to exit a parking garage in his vehicle. A nearby police officer saw that he was having trouble putting the token into the machine to raise the gate. There were vehicles behind the defendant who were waiting to get out of the parking garage. The police officer told the defendant to move his vehicle away from the gate and into a parking spot so the other vehicles could leave. The suspect did move his vehicle and then got out an started stumbling and leaning on his car for support. The officer then approached the defendant, observed that he seemed to be impaired and initiated a DUI investigation. The police officer arrested him for DUI and found cocaine in his pocket.

The criminal defense lawyer filed a motion to suppress the evidence relating to the DUI investigation and the cocaine found in the defendant's pocket. He argued that a police officer cannot command the defendant to move his vehicle without specific evidence that he is committing a crime. By telling the defendant to drive away from the gate to a parking spot, the police officer effectively seized the defendant without sufficient evidence that he was involved in criminal activity.

The court disagreed with the criminal defense attorney. Normally, the police officer must have specific evidence that a person is involved in criminal activity before he/she can seize a person. However, there can be other reasons justifying a seizure. One is a police officer's community caretaking function which is necessary for public safety and welfare. In this case, the court found that the police officer had a right to make the defendant move his vehicle so the others could get out of the parking garage. This was a sufficient community caretaking function to allow the police officer to "seize" the defendant. Once the defendant parked and voluntarily exited his vehicle, the police officer observed signs of impairment from alcohol and DUI and was permitted to initiate the DUI investigation.

In a recent DUI (driving under the influence of alcohol or drugs) case south of Jacksonville Florida, the defendant was driving on I-95 and failed to stop at an open weigh station. The defendant was driving a large pickup truck, and the police officer believed that the defendant was required to stop his truck at the weigh station. When the defendant did not stop, the police officer pulled him over and told him to drive back to the weigh station. Apparently, according to the police officer, the defendant committed a traffic violation on the drive back to the weigh station so the police officer stopped him. The police officer indicated that he smelled alcohol on the defendant and initiated a DUI investigation. The police officer ultimately arrested the defendant for DUI and searched his vehicle. The police officer found marijuana in the vehicle and arrested the defendant for possession of marijuana in addition to DUI.

The criminal defense lawyer moved to have all of the evidence obtained by the police officer after the stop suppressed based on an illegal stop. This would include all of the police officer's observations related to the DUI, including the field sobriety tests and the breathalyzer results, as well as the evidence of the marijuana in the vehicle. Once the criminal defense lawyer files a motion to suppress the evidence, the state has the burden of proving the stop was valid. In this case, the state could not establish that the defendant was required to stop at the weigh station with his big truck. Therefore, the state could not establish that the police officer had a right to stop the defendant. When the state cannot establish that the traffic stop was legal, the evidence of criminal activity obtained after the stop is typically thrown out. As a result, all evidence of the DUI and possession of marijuana charge was thrown out, and the charges were ultimately dismissed.

As criminal defense attorneys in the Jacksonville, Florida area, we see a lot of different DUI cases. One issue that arises from time to time is a situation where the police arrest a person alleging that he/she is driving under the influence of alcohol but there is also evidence of a drug on the person or in the vehicle. For instance, in a recent case, a suspect was stopped for DUI based on alleged alcohol impairment. When the suspect was arrested, the police found a marijuana pipe and other marijuana paraphernalia in the vehicle as well. At the DUI trial, the criminal defense lawyer tried to exclude the evidence of the marijuana paraphernalia arguing that it was irrelevant and prejudicial in a case that was about alleged alcohol impairment.

In other cases, we have seen where the suspect has the actual drug, whether it be marijuana, cocaine, Oxycontin or something else, on his person. While possession of one of those drugs would result in an additional charge, we would argue that that drug charge should be handled separately from the DUI case because evidence of the drugs would be prejudicial and irrelevant to whether the suspect was impaired by alcohol at the time of the DUI arrest.

In Florida DUI cases, the law appears to allow evidence of the drugs or drug paraphernalia in certain circumstances: 1) there is significant evidence that the suspect was impaired, 2) the suspect has evidence indicating he/she recently used the drug(s), 3) there is a lack of evidence indicating the suspect is impaired from any other source and 4) the evidence does not indicate the suspect was not impaired from the drug for which the evidence exists.

The idea here is that if the state is charging a person with DUI from alcohol, evidence of marijuana or some other drug is irrelevant and should not be heard by a jury. On the other hand, if there is evidence that the suspect is impaired and there is evidence of a drug present, the prosecutor can present that evidence to a jury to establish the suspect's impairment if there is no evidence the suspect was impaired from something else.

In a recent DUI case near Jacksonville, Florida, the police obtained evidence that a driver was intoxicated while driving after an accident. When the police officer arrived at the scene of the accident, the defendant was not hurt and did not appear to be intoxicated by drugs or alcohol. As a result, the police did not have probable cause to arrest the driver for DUI. However, the police officer did ask the driver if he would submit to a blood test that would test his blood for alcohol and drugs. The driver agreed, and the blood alcohol test came back positive.

The criminal defense lawyer filed a motion to suppress the results of the blood alcohol test because the police officer did not comply with the Florida implied consent law. The Florida implied consent law says that when a person agrees to accept the privilege of driving in Florida, he/she also agrees to submit to a test of his/her blood or breath when lawfully arrested for DUI. However, as part of the implied consent law, the police officer is obligated to inform the suspect that the suspect is only required to submit to a breathe or urine test, not a blood test. The police officer in this case did not inform the suspect that the blood test was not required. However, the court denied the criminal defense lawyer's motion to suppress the evidence of the blood test. The court stated that this was not a case where the implied consent law was implicated because there was no evidence the driver was intoxicated and he was not under arrest at the time. This was simply a case where the police officer asked the driver to voluntarily submit to a blood alcohol test and the driver agreed.

The driver in this case should have been aware that he could have refused the police officer's request for the blood alcohol test. If he had refused and the police officer arrested him and/or had him take the blood alcohol test anyway, the results would likely have been thrown out of court because the the police officer did not have sufficient evidence to believe that the driver was impaired by drugs or alcohol.

As in a lot of cases, whether they are DUI cases or drug cases, the police must have specific evidence of criminal activity before they take evidence and conduct searches and seizures. However, if the police officer asks for consent and the suspect agrees, the police officer can do a lot of things he/she would not otherwise be permitted to do based on a lack of evidence.

In DUI cases in Florida, the police officer who suspects the driver of driving while intoxicated will normally request that the driver submit to a breath alcohol test, or breathalyzer, which is the common test to determine if a person is driving over the legal limit. Blood and urine tests also exist, but police typically request the breath test due to the fact that it is easier to administer. In Florida, when a person gets a driver's license and accepts the privilege to drive, he/she agrees to submit to an alcohol test after a lawful arrest for DUI where the police officer had probable cause to make the DUI arrest. Normally, the driver can refuse the breath, blood or urine test- the police officer will not force the the driver to submit to the breathalyzer, blood or urine test. However, if the driver refuses to submit to the breath, blood or urine test after a lawful arrest for DUI, the person is subject to a longer driver's license suspension and being charged with a misdemeanor crime for a subsequent DUI test refusal. The refusal can also be used against the driver in court during the DUI criminal case.

However, police and prosecutors in some counties in Florida are fighting back against people who refuse the breathalyzer or other alcohol test. They are having a judge available in certain situations, such as when police set up checkpoints or during times when police expect a lot of drunk drivers, who will quickly issue search warrants when a driver arrested for DUI refuses the breath test. In this situation, after the driver refuses the breathalyzer, the police officer will tell the judge why he/she thinks the driver has committed a DUI and request the judge to issue a search warrant to obtain the driver's blood to be tested for alcohol content. In this situation, the police would not force the driver to submit to the breath alcohol test, but it would force the driver to submit to a blood alcohol test.

Ths method of getting a search warrant on the fly and forcibly taking one's blood to test it for alcohol obviously raises several concerns. It is likely this will be challenged through the appellate courts in Florida and other states to determine if the strategy and the method are legal.

In a recent felony driving with a suspended license case in Florida, the charge was thrown out because the court determined that the police officer illegally seized the defendant before he learned the defendant's license was suspended. This is an important case because we see the same situation arise in DUI cases.

In this case, the police officer saw the defendant sleeping in the driver's seat of his vehicle in a parking lot with the car running. It was early in the morning, and the parking lot was otherwise empty. The police officer approached the vehicle and saw the defendant apparently asleep in the car. The police officer knocked on the driver's side window and woke him up. The police officer did not notice anything illegal going on or any cause to be concerned for the driver's safety. After waking him up, the police officer ordered the driver to turn off the car. The police officer then asked the driver for his license and learned he had a suspended license. Because he had several prior driving with a suspended license convictions, the driver was charged with felony driving with a suspended license, which carries a maximum penalty of five years in prison in Florida.

The criminal defense attorney for the driver filed a motion alleging that the police officer illegally seized the driver before learning he had a suspended license. The police are not allowed to detain, or seize, a person so that he/she is under the impression that he/she cannot leave without reasonable suspicion of criminal activity, or specific evidence that the person needs assistance. In this case, the police officer did not have any specific reason to believe the driver was committing a crime when he approached the vehicle. When the police officer ordered the driver to turn off his car, the driver was under the impression that he could not leave and was being detained. Because the police officer did not have any specific legal reason to make that demand of the driver, it was an illegal seizure. As a result, any evidence the police officer uncovered (such as the evidence that his driver's license was suspended) was a result of an illegal search and seizure and was thrown out. The charge of driving with a suspended license was thrown out with that evidence.

As criminal defense lawyers in the Jacksonville, Florida area, we have seen several cases that start out this way. Many times, they are DUI cases that begin when a police officer sees someone resting or sleeping in his/her parked vehicle and approaches to investigate. There is nothing illegal about sleeping in one's car parked in a parking lot. If the police officer does not have reasonable suspicion that the person is committing a crime, the police officer may not order the person to turn off the car, get out of the car or do anything else that constitutes a detention.