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In Florida, DUI is a crime. Everyone knows that. But it is important to understand what exactly that means. DUI means driving under the influence of alcohol or drugs. The key word, for the purposes of this post, is “influence”. This is something that criminal defense lawyers experienced in DUI cases will stress to prosecutors, judges and juries in cases where a DUI defendant had been drinking but was not impaired. It is not a DUI crime in Florida to drink and then drive. It is not a good idea of course, and we would recommend utilizing one of the many other options available today to people who have had anything to drink and then want to go somewhere, but the crime of DUI is not drinking and driving. It is drinking (or using any sort of drug that could cause impairment) enough to cause impairment and then driving. Impairment is a subjective term, of course. Unfortunately, it is decided by the police officer, at least initially, and many of them draw their conclusions first and look for evidence second.

In any case, if a police officer stops a driver and smells alcohol or determines that the driver has been drinking some other way, that is not sufficient for a DUI arrest. One, smelling like alcohol does not necessarily mean the driver’s drinking was recent. If the person was at a bar, it may not mean the driver had been drinking at all. But most importantly, if the driver smells like alcohol, it might mean he/she had been drinking, but it does not mean he/she is impaired. It is certainly a relevant factor, but the police officer needs actual evidence of impairment to proceed with a DUI investigation. Examples of such evidence would be an erratic driving pattern, slurred speech, bloodshot eyes, difficulty understanding and answering questions, etc. Of course, a police officer looking to make a DUI arrest can believe he/she observes these signs and document them even if they are questionable or nonexistent. It is all subjective, after all, but the officer needs to articulate these facts to proceed with a proper DUI case.

In a DUI case just south of Jacksonville, Florida, a police officer stopped the driver for speeding and making a quick lane change to pass another vehicle. At the vehicle, the officer said the driver was responding slowly and speaking in a thick tongued manner (it’s not clear what this means, but police officers put this in their DUI reports all of the time). He also said he smelled an odor of alcohol. With this information, he proceeded with a DUI investigation and ultimately a DUI arrest.

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In Florida, when a person is arrested for a DUI, the Department of Highway Safety and Motor Vehicles (DHSMV) will normally suspend that person’s driver’s license for six or more months based on the arrest. The DHSMV will do this immediately and irrespective of what happens in the criminal case. In other words, a DUI arrest normally triggers an automatic driver’s license suspension that takes effect and continues even if the criminal DUI case later gets dropped, gets reduced to a reckless driving charge or has some other favorable result. The length of the DHSMV suspension depends on the circumstances- prior DUI cases, whether the suspect refused the breathalyzer test, etc. There are ways to challenge the DHSMV suspension. Speaking to an experienced Florida DUI lawyer is the best way to understand the ramifications of a DUI arrest and what steps can be taken to fight the charges and the suspension.

There are special penalties for people who drive commercial trucks who get arrested for DUI. Under Florida law, if a person is convicted of a DUI and has a commercial driver’s license, that commercial driver’s license will be suspended for one year. This is true whether the person pleads guilty or no contest. The suspension also occurs if the commercial driver is driving his/her noncommercial vehicle at the time of the DUI arrest and is not working at the time. So, the law does not require the commercial driving to be driving a commercial vehicle for the commercial driver’s license to be suspended. If the DUI suspect is driving a commercial vehicle and is stopped by a police officer, he/she is subject to a one year suspension of the commercial driver’s license if his/her blood alcohol content is only 0.04 or higher. That is half of the legal limit for DUI’s in Florida. Basically, drinking almost any alcohol and driving a commercial vehicle may not be enough for a DUI conviction in a regular criminal case, but would be enough for a one year commercial driver’s license suspension and other sanctions under Florida law. Anyone who has a commercial driver’s license risks fines and losing his/her commercial license and ability to work in that field for a year if he/she is driving a commercial vehicle after having any alcohol or driving a private vehicle after having a couple of drinks or more. The breathalyzer tests can be unpredictable and results vary for different people. A reading of 0.04 is very low and could be achieved with one drink. A reading of 0.08 can be achieved after a couple of drinks depending on the person.

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In Florida, the police obtain evidence in most DUI’s in a fairly standard manner. After the traffic stop, the police ask questions, make observations and ask the DUI suspect to participate in field sobriety exercises. The suspect can always refuse to answer questions and cooperate with the field sobriety tests. If the police officer does not have a camera to record answers and the suspect’s performance on the field sobriety tests, it is normally a good idea to refuse as there is no way for a suspect to prove what was said and how he/she performed later if DUI charges are brought and the case goes to trial. It should always be the responsibility of the state to have cameras available at DUI stops to property document evidence.

In most DUI cases, after an arrest, the suspect will be taken to jail where he/she is asked to blow in a breathalyzer to test blood alcohol content. However, there are situations where the police will seek blood instead. For instance, after a crash that involves an injury or death, the police will seek blood many times rather than a breath test. The blood is sent to a lab for testing for alcohol content. The police can obtain this blood from a DUI suspect in a few ways. The police can ask for and obtain consent from the suspect. Again, the suspect is not required to give such consent. If the suspect refuses and there is sufficient probable cause to believe the suspect was driving while impaired, the police officer may be able to obtain a search warrant to force the suspect to give blood that will later be tested for alcohol content. Also, if the suspect is injured, the hospital may take blood from the suspect as part of its normal treatment protocol. Some counties in Florida have a policy where they take blood from a suspect just to clear him/her medically so he/she can be taken to the jail, even if it is not clear the suspect is injured. In cases where the suspect goes to the hospital and blood is taken, the state may later subpoena those records to obtain blood test results.

DUI cases can be complicated when it comes to blood samples and alcohol testing results as the law provides the state with several methods to obtain evidence, but there are also times when the state does not follow the law allowing a criminal defense attorney to get alcohol test results thrown out.

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Florida’s Stand Your Ground law garnered quite a bit of attention after it was passed and surrounding the Trayvon Martin case, but it’s essentially an extension of the Florida self-defense law that allows defendants in case involving violence to petition the court for a dismissal of the charges under certain circumstances where the defendant had a legal right to use violence where he/she reasonably believed he/she was in danger of becoming a victim of violence. What is special about the Stand Your Ground law in Florida is that it is a form of immunity, and a criminal defense lawyer does not have to leave the decision to a jury, which is always unpredictable. The criminal defense attorney can file a motion with the judge and force the state to present evidence. If the judge agrees with the defendant’s self-defense claim, the case ends there, and a jury never hears it. However, there are limitations to the Florida Stand Your Ground law.

In a recent case south of Jacksonville, Florida, the defendant was charged with shooting into a building. He claimed self-defense, and his criminal defense lawyer filed a motion for immunity/dismissal under the Florida Stand Your Ground law. The defendant claimed he exited his vehicle, and someone in the building fired a gun at him so he fired back into the building. If true, this would seem to constitute a good claim under the Stand Your Ground law. However, an evidentiary hearing is required with these motions, and a video of the incident showed that the defendant exited his vehicle and pointed a gun at some people before any of the shooting started. Subsequently, someone from the building fired at the defendant, and he fired back. It is true that the defendant was seemingly defending himself when he fired his gun, but the problem for him was waving his gun at people first. Under the Florida Stand Your Ground law, a defendant cannot succeed if he was engaged in criminal conduct immediately prior to the time his self-defense claim arose. When he was waving the gun at people, he was arguably committing an aggravated assault, among other possible crimes. Because he was committing a crime when his self-defense claim arose, he cannot take advantage of the Stand Your Ground law. That law precludes relief for people involved in criminal activity. This is true even if the state does not actually charge the defendant with the criminal activity that disqualifies the defendant from relief under the Stand Your Ground law. As a result, the defendant was properly prosecuted and convicted of shooting into a building.

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One reason police are often against the full legalization of marijuana is that marijuana illegality gives police officer perhaps the easiest excuse to search people and vehicles. Likewise, marijuana arrests are about as easy as it gets for police officers. They smell marijuana, they search and they arrest. No real work, thought, diligence or investigation required. And while marijuana arrests obviously do nothing to make anyone safer and needlessly cost time, money and resources, they count as arrests on the stat sheet all the same. And I suppose it beats having to investigate real crimes that actually have real victims.

Florida has been slow to work its way into the 21st century and legalize marijuana, but at least medical marijuana is legal. Now, some people (those with a valid medical marijuana card) whose vehicle or other property may smell like marijuana may not be doing anything illegal.  Since that is the case, should police still be allowed to stop and search people based on the odor of marijuana when marijuana is not necessarily illegal depending on who has it?

In a recent case near Jacksonville, Florida, police officers stopped a vehicle at night for a headlight violation. They approached the vehicle and smelled burnt marijuana. They searched the vehicle and arrested the suspect for possession of cannabis. The criminal defense lawyer filed a motion to suppress the evidence of marijuana arguing that the police unlawfully searched the vehicle because the odor of marijuana does not necessarily indicate illegal activity.

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In Florida, the Constitution protects people from unreasonable searches and seizures from law enforcement. This means the police cannot just stop, detain or search a person based on speculative reasons or for no reason at all. Depending on the circumstances and the nature of the intrusion into a person’s privacy, the police must have some level of specific proof that a person is, or may become, involved in criminal activity. For an initial detention where the police stop a person to briefly investigate possible criminal activity, the police must have reasonable suspicion of a danger or criminal activity. This suspicion must be based on specific facts, not a hunch.

In a recent case just south of Jacksonville, Florida, the defendant was at a private church function uninvited and wearing a bulletproof vest. The police were called, and when they arrived, the defendant walked away. The police officers asked the defendant some questions and then detained him to investigate further. As the police were detaining and questioning the defendant, they noticed a bulge in his pocket. They patted the defendant down and found a gun. The defendant was arrested.

The criminal defense lawyer argued that the police unlawfully detained the defendant because there was no reasonable basis to believe that he had committed, or was about to commit, a crime. It is not illegal to wear a bulletproof vest in public, and the defendant did not give any indication that he was involved in criminal activity.

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When a defendant in Florida pleads guilty or no contest to a crime, or goes to trial and is convicted by a jury, the next step is for the judge to sentence that defendant. Most sentences for crimes other than minor misdemeanors involve incarceration, probation or both. When a defendant is placed on probation, the judge will normally require the defendant to complete certain conditions while on probation, such as community service, paying restitution, some type of treatment, etc. The judge also has the authority to require more unorthodox conditions when the facts of the case make such requirements appropriate.

For instance, in a recent sexual battery case near Jacksonville, Florida, the defendant was placed on probation for 10 years, and one of the conditions prohibited the defendant from accessing the internet except for work and shopping, but no access to social media sites in any case. The criminal defense lawyer objected to that condition and ultimately appealed the sentence to the appellate court. The criminal defense attorney argued that the condition forbidding internet use violated the defendant’s First Amendment rights. The legal analysis for such a First Amendment issue looks at whether the judge’s condition is narrowly tailored to protect a compelling government interest. In other words, the state or the judge can infringe upon a person’s First Amendment rights, but the particular condition that does so must be designed to protect a significant interest and it must not be overbroad in doing so. The criminal defense lawyer conceded that protecting children from a convicted sex offender was certainly a compelling interest. However, the criminal defense attorney argued that such a broad internet restriction was not narrowly tailored to protect that interest.

The criminal defense lawyer cited a United States Supreme Court case which held that a North Carolina statute was unconstitutional as it created a felony crime for any sex offender to access certain websites, including general social media websites like Facebook and Twitter. The Florida appellate court distinguished that case because the North Carolina case involved a statute that limited sex offenders from accessing the internet even after their sentences were completed. So, even after they had successfully completed probation, those sex offenders were still restricted from accessing the internet and risked committing a new felony crime for a violation. That statute did violate the First Amendment as it was prospective and indefinite.

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In DUI cases, once the police arrest a person suspected of driving under the influence of alcohol or drugs, that person is taken to jail and booked. Only after the arrest and booking is that person taken to a room in the jail and asked to submit to a breathalyzer test. Some people might think the breathalyzer test is part of the DUI investigation such that if a person has a low breathalyzer reading, the police officer will let that person go without an arrest. That is not how it works. The sole purpose of the breathalyzer test is for the state to acquire more evidence to prosecute people for DUI. In other words, if a person has a low breathalyzer reading, that person is still going to jail.

Normally, the police will request the breathalyzer at the jail after arrest. This measures the person’s blood alcohol level. However, if the police officer suspects a person is driving under the influence of drugs, he might request a urine sample instead. Or, if the breathalyzer reading is low, or 0.00, the police officer might assume the issue is drugs rather than alcohol and request a urine sample after the breathalyzer test. The breathalyzer only tests for alcohol, not drugs.

Can the police request a urine sample after, or instead of, a breathalyzer test? And if so, do they need a search warrant? Blood tests generally require a search warrant in a standard DUI case, but urine tests are considered less intrusive. Urine tests do not require physical intrusion into the body. Also, the FDLE, which tests the urine, only test for drugs and do not keep the sample or maintain any information other than the test results. Finally, the courts look at the fact that there is little embarrassment or invasion of privacy involved with a urine test. The suspect goes into the bathroom and urinates into a cup with his/her back to an officer of the same gender. Therefore, the police can request a urine test as part of a valid arrest for DUI in Florida.

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Over the last several years, there has been a lot of litigation over whether, how and to what extend the police and prosecutors can access a person’s cell phone data. As everyone is aware, cell phones can contain a wealth of information about a person, his/her activities and the people with whom he/she associates. This can provide the state with a lot of incriminating information that can be used to successfully prosecute defendant in a wide variety of cases. But because cell phones contain so much private information, courts in Florida have recognized a right of privacy with cell phone information such that the police cannot normally just take a person’s cell phone and search it for whatever they want.

Let’s say the state did obtain a defendant’s cell phone or similar electronic device. Can the state force the defendant to provide the passcode to the state so they can access and search it?

In a recent robbery case near Jacksonville, Florida, the police seized a passcode protected Iphone from the defendant when he was arrested. The state later filed a motion to compel the passcode from the defendant. In the motion, the state said it was looking for all communication information and photographs for a seven day period prior to the arrest. The motion did not reference any specific information the state believed was on the phone that was relevant to the case. The state just believed the defendant communicated with his co-defendant prior to the robbery and was looking for evidence of that. The criminal defense attorney objected based on the Fifth Amendment right against self-incrimination. The Fifth Amendment forbids the government from compelling testimonial communications or acts that might incriminate a suspect or defendant. Whether something is testimonial depends on whether the request requires the person to use the contents of his own mind to communicate some statement of fact. This court determine that disclosing a passcode known in the defendant’s mind would be a testimonial act.

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We wrote a blog post several months ago about a case where a police officer in Florida stopped a driver because some of the unnecessary letters on the license plate were obscured. In other words, the letters and numbers that make up the unique information on a license plate that identified the vehicle and owner were perfectly visible. However, in Florida, there is often other wording on the license plate. It might say “Sunshine State” or provide the website “MyFlorida.com” on the plate. Obviously, these words/letters are irrelevant to the purpose and requirement of a license plate. In the prior case, the driver had a border around his license plate that obscured some of this other wording, and the police officer pulled the driver over as a result and arrested him for an unrelated crime. The criminal defense lawyer filed a motion to suppress claiming the stop was illegal, and kind of ridiculous, but the defendant lost because the Florida statute said none of the wording can be concealed on a license plate.

It looks like there has been a new case on the matter. This is an important issue because a lot of people have license plates where some of the letters are concealed. Many people have license plate frames that are advertisements or display their favorite sports teams. These often conceal part of the license plate in Florida. This may give the police free reign to pull the driver over, which often gives the police reign to search the vehicle. Remember, if the police want to search your vehicle, that is probably what they are going to do regardless of whether they are permitted to do so under the Fourth Amendment.

This new case occurred south of Jacksonville, Florida. A police officer stopped a driver who had a border around his license plate that was an advertisement for the place where he purchased the vehicle. It partially obscured the words “Sunshine State”. The important letters and numbers of the license plate were perfectly visible. The police officer found cocaine in the vehicle and arrested the driver for possession of cocaine. The criminal defense attorney moved to suppress the evidence of the cocaine arguing that the stop was invalid. The question comes down to whether these license plate frames or borders are illegal and a basis for the police to make a traffic stop when they conceal superfluous wording on the license plate.