Articles Posted in DUI

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In Florida, there is a law called implied consent.  This means that when you agree to accept driving privileges and a driver’s license in Florida, you agree to submit to a breathalyzer test if the police have probable cause to believe you have driven while impaired from alcohol.  This does not mean you have to submit to a breathalyzer test.  There are many cases where a police officer arrests a person for DUI in Florida without the requisite probable cause, and a DUI suspect might decide not to cooperate with the police officer any further.  Of course, it is then up to the criminal defense lawyer to file a motion to suppress after the fact and the judge to rule on whether probable cause existed to support the DUI arrest and request for a breathalyzer.

Other times, a DUI suspect may not agree to submit to a breathalyzer test because he/she does not believe he/she is being treated fairly or he/she just does not want to give the state evidence to prove the DUI case in court.  In any case, as a practical matter, the implied consent law says that if the police officer has probable cause to believe a person is guilty of DUI, the police officer can request a breathalyzer test.  If the suspect refuses, the suspect is then subject to certain penalties.  A refusal may result in a longer driver’s license suspension.  A second refusal when there has been a previous refusal during a prior DUI case could result in a new misdemeanor charge.  For the instant case, if a person refuses the breathalyzer, the state will try to use that refusal against the defendant in the DUI case if it goes to trial.  The state will argue to the jury that the defendant refused the breathalyzer test because the defendant was drunk and knew he/she would fail it.  Of course, there are many reasons why a defendant would refuse a breathalyzer test, and the criminal defense attorney can make those counterarguments at a DUI trial.  Ultimately, it would be up to a jury to decide, if the DUI case goes to trial.

Procedurally, in Jacksonville, Florida, the police normally do not offer the breathalyzer test until after the suspect has been arrested for DUI and taken to the jail.  That is one reason why people decide not to submit to a breathalyzer test.  The person is already arrested for DUI at that point, and no one gets “unarrested” after a good breathalyzer reading.  But, after the suspect is taken to the jail and brought to the breathalyzer room in the jail, if he/she refuses to submit to the breathalyzer, the state will try to use that refusal against the suspect in court.

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The case we wrote about in our previous post was a DUI manslaughter case near Jacksonville, Florida that involved some interesting legal issues.  A crash occurred at about 1:00 a.m. involving two vehicles.  The victim’s vehicle was forced off of the road into a canal.  The defendant initially fled the scene of the crash, but he did return about an hour later.  However, he never checked on the status of the victim.  There were issues surrounding the blood draw and whether the state could force a person to give blood for alcohol testing without consent and without a search warrant.

Another interesting issue was discussed in this DUI case.  DUI manslaughter is obviously a serious charge.  It is a second degree felony in Florida, which means a person can get sentenced to up to 15 years in prison if convicted.  We have heard of judges giving those sentences, or close to it, for the more egregious DUI manslaughter cases.  A DUI manslaughter can become even more serious if the suspect does not render aid to the victim after the crash.  In that case, the DUI manslaughter charge goes from a second degree felony to a first degree felony, which is punishable by up to 30 years in prison.

It is not clear what exactly the term “render aid” entails.  If the suspect has no medical training, there is only so much he/she can do to help an injured victim and there is only so much that person should try to do in order to not make things worse.  At a minimum, we can assume rendering aid means staying at the scene, checking on the victim and calling for an ambulance as soon as possible.  If the victim has an obvious emergency that can be handled by the suspect, the suspect probably needs to try and alleviate that problem.

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When the police want to search a person’s property, or search a person, they normally need consent from that person or a search warrant signed by a judge.  However, that general rule does have exceptions.  In most DUI cases, the police officer will request that the subject submit to a non-invasive breathalyzer test to determine the blood alcohol level.  Other times, the police officer may request a blood draw.  The police cannot request a blood draw in just any DUI case.  There are rules that limit when the police can request blood for alcohol testing in DUI cases.  And when police request blood in a DUI case and the suspect refuses, the police normally cannot force a blood draw without a search warrant.

As stated, there are exceptions to this rule, and one that applies at times in DUI cases is the exigent circumstances exception.  Exigent circumstances under the law generally means there is a risk that the evidence in a DUI case (the alcohol in the suspect’s blood) will be lost if the evidence is not obtained in a timely manner.  This can be particularly relevant in a DUI case as the alcohol in a person’s body dissipates as the body’s metabolism takes effect.

The fact that alcohol dissipates in a person’s body is not a sufficient reason, by itself, to force a blood draw without a search warrant after a suspect refuses the blood draw.  Other factors must be present.

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Most DUI cases result from a police officer alleging that he/she observed the driver commit some traffic violation after which a traffic stop is conducted and a DUI investigation follows.  If the police officer believes the driver is impaired from alcohol, the officer will arrest the driver and take him/her to jail.  Only after the driver is booked into the jail is he/she asked to blow in the breathalyzer to try to determine his/her blood alcohol content.

Therefore, in most DUI cases, the police request that the driver submits to a breath test to try to find out the blood alcohol content.  There are, however, other tests.  Drawing blood and sending it to the crime lab is another way to try and determine a DUI suspect’s blood alcohol content.  However, the police are not always allowed to request a blood to test alcohol content since that test is obviously more invasive than a breathalyzer test.  A DUI suspect can always ask the police officer for an independent blood alcohol test, and the police have to accommodate the DUI suspect if it can reasonably be done.  But, the police can only seek a blood test in certain circumstances.

One situation where a blood test is fairly common is when a DUI case involves a serious accident.  After a serious accident, if the police officer believes a driver is drunk driving or impaired from alcohol, the police officer will want to try to find out the driver’s blood alcohol content.  It may not be feasible to explain a person’s rights and administer the breathalyzer in some of these cases.  For instance, if the driver is seriously injured and has to go to the hospital, it would not be possible to take the driver to jail and perform the breathalyzer test.  In these cases, the police officer can request a blood draw to send the sample to the lab for testing later.

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In Florida, the DUI (driving under the influence of alcohol or drugs) laws come with minimum mandatory penalties for a conviction.  These penalties increase for each successive DUI a person gets.  One benefit of a criminal defense lawyer getting the state to amend a DUI charge to a reckless driving charge is the reckless driving charge does not count as a DUI conviction that increases the minimum penalties if the person gets one or more additional DUI convictions.

One of the minimum penalties that comes with a DUI conviction is a suspension of the person’s driver’s license.  The suspension can be as short as six months for a first DUI conviction or as long as ten years for a third DUI conviction that is within ten years of the prior conviction.  The DMV does allow people to get hardship licenses which permit people to drive to work, school and other necessities, but there may be a period of time before a person can apply for a hardship license depending on the case.

If a person gets a fourth DUI conviction in Florida, that person’s driving privileges will likely be revoked forever.  That is mandated by statute in Florida.  However, not all convictions count.  In a recent DUI case from Jacksonville, Florida, the DMV attempted to permanently revoke a person’s driving privileges based on four prior DUI convictions.  However, it was noted that one of prior DUI convictions was a violation of a city ordinance, rather than a Florida state statute.  The criminal defense attorney appealed the permanent suspension.  The court agreed and held that a DUI conviction that is a violation of a city or municipal ordinance does not count as one of the four prior DUI’s that can result in a permanent driver’s license suspension.  The prior convictions must be violations of state DUI laws.  The conviction at issue was an old DUI conviction that related to an old city ordinance.  However, the DMV can go back as far as they want to count prior DUI convictions.  If a conviction is 40 years old, it can count, as long as it is a state DUI violation.

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In Florida, most DUI (driving under the influence of alcohol or drugs) cases are the result of a police officer claiming to observe a suspect violating some traffic law while driving, after which the officer conducts a traffic stop and DUI investigation.  Other times, which occur in the Jacksonville, Florida area from time to time, the police set up a DUI roadblock and check drivers as they pass through the checkpoint.  In these cases, the police observe the suspect driving the vehicle, and if they can prove the driver was impaired from alcohol or drugs, the police observe all of the elements necessary to prove a DUI charge ad can move forward with a DUI arrest.

This is important because there is a law in Florida that essentially says the police cannot arrest a person for most misdemeanors unless the police actually observe the suspect commit the misdemeanor crime.  Again, this usually is not an issue in DUI cases because most DUI cases result from traffic stops.  But, there is a small subset of DUI cases where this can be an issue for a criminal defense lawyer to pursue.  For instance, consider a case where a civilian or even a non-state law enforcement official observes a suspect driving while impaired and calls the local police to report it.  When the police locates the DUI suspect, the suspect has already parked and exited the vehicle.  The police officer might conduct a DUI investigation and determine that the suspect was impaired from alcohol or drugs, but the police officer cannot arrest the suspect for DUI.  In this case, someone might have seen the suspect driving while impaired, but the police officer did not.  If the police officer did not observe that element of the crime, the police officer cannot arrest the driver for DUI.

There are two exceptions to this rule.  Local police officers who have authority to investigate such crimes can relay the required information to another police officer who can make an arrest.  For instance, police officer A observes a suspect driving erratically and pulls the suspect over.  Police officer B arrives to take over the DUI investigation and police officer A tells officer B what he observed.  Officer B finishes the DUI investigation and arrests the driver.  Fellow officers are considered interchangeable in this scenario.  The other exception involves traffic crashes.  A police officer who responds to just about any type of crash that involves an injury and/or any property damage can investigate the case for a potential DUI and make an arrest even if the police officer arrived after the crash and did not observe anyone driving.  The state still must prove the DUI suspect was driving or in control of the vehicle, but the police do not need to have observed it for an arrest in these types of DUI cases.

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In Florida, when a police officer stops a driver and suspects that he/she is driving while impaired from alcohol or drugs, that police officer will go through the normal DUI investigation.  That typically includes various questions about what the driver has been doing, where he/she has been and how much he/she has had to drink.  It is important for everyone to understand that you have a right to refuse to answer such questions.  In fact, it is usually a good idea to give your name, license, registration and insurance card and then request to speak to a lawyer.  As most people should know by now, anything else you say can and will be used against you in a DUI case.

The next step in a DUI investigation is normally to ask the driver to exit the vehicle and submit to field sobriety tests.  Again, it is usually a bad idea to perform these tests.  First and foremost, these are completely subjective tests (i.e. if the police officer says you failed, then you failed).  And these subjective tests are being conducted and graded by a person who already believes you are drunk.  Also, if there is no video in the police car documenting the tests, your ability to defend your performance in court later on is severely impaired.  Even if there is a video, the video will not catch certain critical parts of the testing, For instance, when the police officer conducts the HGN test where he asks you to follow the light with your eyes, he will say you failed, and the video will not be able to disprove that because it will not capture how you did on that particular test.

After the field sobriety tests, or your refusal to perform them, the officer will likely arrest you for DUI.  You are taken to the jail and booked.  Only after you are in the jail does the officer asks you if you want to blow in the breathalyzer.  Given the timing, the first thing you need to understand is that the breathalyzer will not save you from an arrest.  You have already been arrested.  It is just another tool the police use to try to convict you of DUI.  In Florida, when you obtain a driver’s license, you consent to blow into the breathalyzer as part of a lawful DUI investigation.  However, you can still refuse that request.  If you refuse a breathalyzer test as part of your first DUI, there are two primary repercussions.  As long as the DUI arrest is valid, your driver’s license will be suspended for a year (rather than six months if you take the breathalyzer test).  Secondly, if your DUI case goes to trial, the state can use the refusal against you in court and argue you refused the breathalzyer because you knew you would fail.  Of course, you and your criminal defense lawyer can argue the many other reasons why you rightfully felt like you should not have taken the breathalyzer.

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In alleged DUI cases that involve serious accidents, the police are often not able to perform their usual DUI investigations which include field sobriety tests and a breathalyzer test, if the suspect consents to them.  If the suspect is in no condition to perform those tests due to injuries from the crash or is taken to the hospital, the police cannot perform the normal DUI investigation.  If the police are able to develop probable cause that the suspect was driving while impaired from alcohol or drugs, there are ways for the police to continue investigating a DUI after a crash.

The police officer can go to the hospital and request that the driver submit to a blood draw. After the blood is taken from the DUI suspect, the police send it to the crime lab where it is tested for drug and alcohol content.

However, as a result of a United States Supreme Court case that was decided in 2013, the police cannot take a DUI suspect’s blood without consent from the suspect or a search warrant.  The state used to be able to argue that they did not need a search warrant due to exigent circumstances inherent in a DUI case- that alcohol is constantly metabolizing in the blood and as time passes, getting an accurate blood alcohol reading becomes more difficult.  The recent Supreme Court case rejected that argument.  The general rule is that a blood draw is considered a search under the Constitution so the police need consent or a search warrant to obtain someone’s blood.

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Every now and then, and often during holiday time like New Year’s Eve coming up, the police in Florida and other states will set up DUI checkpoints in strategic areas of the city.  These checkpoints are normally located down the street from a popular bar or other area where people often drink alcohol.  Florida law does not allow the police to just set up a checkpoint at any time whenever and wherever they want.  The police have to plan their DUI checkpoints and follow certain rules for a checkpoint to be legal.  For instance, the police must get approval in advance, they must establish certain written rules for the checkpoint, the checkpoint can only last for a certain period of time and they must follow all of those rules during the checkpoint.  The police cannot just use their discretion to pick and choose which drivers they are going to stop.  They must stop drivers based on a predetermined plan.  For instance, the police can decide to stop every fourth vehicle, but they cannot use some arbitrary criterion to stop vehicles as they go.  Assuming the police establish proper rules and follow them, they are allowed to set up DUI checkpoints and stop drivers as they come through to determine whether they are driving under the influence of alcohol or drugs.

Checkpoints and road closures for other purposes do not have to follow those same rules.  For instance, in a DUI case just outside of Jacksonville, Florida, the police had blocked off the road for an air show and set up a checkpoint where only certain authorized vehicles could pass.  The defendant approached the checkpoint in his vehicle, rolled down his window and asked the police officer for directions.  The police officer noticed that the defendant smelled of alcohol and slurred his speech and he saw an open container of alcohol in his vehicle.  The police officer stopped the defendant, investigated further and arrested the defendant for DUI.

The criminal defense lawyer filed a motion to suppress the evidence of the defendant’s impairment arguing that the police officer conducted a checkpoint that did not establish the rules necessary for a proper DUI checkpoint.  The court disagreed because this was not a DUI checkpoint.  The police were not stopping drivers as they approached to check them for DUI.  They were only stopped and asked to turn around because they were not allowed to pass.  Because this was not a normal DUI checkpoint where some drivers were checked for potential impairment, the police were not required to have written, specific rules for the checkpoint.  As a result, the police officer was entitled to investigate further for a potential DUI arrest when the driver appeared to be drunk driving.

 

 

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Some people in Florida believe they are only at risk of a DUI arrest if they are caught driving on the public roads by a police officer while impaired from alcohol or drugs.  That is not true.  A person does not even need to be driving to be arrested and convicted of DUI.  The Florida driving under the influence statute confers criminal liability on anyone who is driving while impaired from alcohol or drugs or in actual physical control of a vehicle while impaired from alcohol or drugs.  We have dealt with many cases where a person was arrested for DUI while resting or sleeping in a vehicle that is not even running.  The state can move forward with a DUI case in that situation if the suspect had the keys to the vehicle and it was capable of being driven, even if the keys were not in the ignition at the time.

Additionally, a police officer can initiate a DUI investigation when the suspect is on private property, as opposed to driving on the public roadway, in some situations.  In a recent DUI case just south of Jacksonville, Florida, witnesses observed the suspect crash through the barricade at the entrance to a private parking garage and proceed to park inside.  The witnesses called the police, and a police officer found the suspect in the parking garage.  He initiated a DUI investigation and ultimately arrested him for DUI.  The criminal defense lawyer moved to dismiss the DUI charges because the incident took place in a private garage.

Florida law is not exactly clear as to a police officer’s authorization to detain, investigate and arrest someone for DUI inside a private garage or other private property.  It is certainly possible that if all of the events of this incident occurred within the confines of the private property, the police officer would not be authorized to conduct a DUI investigation.  However, in this case, the defendant crashed through the barricades at the front of the property from a public roadway and proceeded into the private garage.  Additionally, the driver did not pay to enter private garage as patrons were supposed to if they wanted to lawfully use the garage.  The court found that this was sufficient to allow the police officer to conduct a DUI investigation and ultimately make the DUI arrest.  Had the defendant entered the garage appropriately and shown signs of impairment once inside, perhaps by hitting a parked vehicle inside, it is not clear if the police officer would have been permitted to conduct a DUI investigation at that point.