Articles Posted in DUI

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With some exceptions, police officers are generally only allowed to investigate crimes and make arrests within their jurisdictions. A Jacksonville Sheriff’s Office employee isn’t normally allowed to drive into St. John’s County and pull people over who he suspects of driving under the influence of alcohol or drugs. Additionally, off-duty police officers are not normally allowed to investigate cases or make arrests.

However, in a case south of Jacksonville, Florida, a police officer ended his shift and was driving to his house, which was in a different county. Another vehicle was swerving and almost hit the officer forcing him to leave the roadway. The officer turned around and started following the suspect. The police officer observed him swerving all over the road. The police officer pulled the suspect over to investigate for DUI. He called a local police officer who took over the investigation and did ultimately arrest the suspect for DUI.

The criminal defense lawyer filed a motion to suppress the evidence of DUI arguing that the initial police officer illegally pulled the defendant over since he was off-duty and out of his jurisdiction. The state argued that the police officer made a lawful citizen’s arrest. In other words, the state treated the case as if the police officer was a private citizen. Citizens are allowed to make arrests in Florida if they witness a person commit a felony crime or the crime of breach of the peace.

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In Florida, the police usually attempt to substantial a DUI (driving under the influence of alcohol or drugs) arrest by asking the suspect to take a breathalyzer test. This is a test normally administered at the jail only after the suspect has been arrested. The purpose of the test is never to determine if the suspect is impaired; it is always to secure more evidence against the suspect. In other words, if a DUI suspect agrees to submit to the breathalyzer test at the jail and blows under the Florida legal limit of 0.08, the police will not let that suspect go. On the other hand, if the suspect blows above 0.08, the state will always attempt to use that evidence against the suspect in court.

The police have other tests to try to create evidence. Sometimes, under certain circumstances, the police can take blood that is later tested for alcohol or drug content. There are specific rules that determine when a blood test is appropriate. The police can also request a urine test in certain situations. In a case just south of Jacksonville, Florida, after the suspect was arrested for DUI, the police officer asked if the suspect would submit to a breath or urine test. The suspect agreed to give the urine sample. The urine sample was given in a fairly private setting and under the supervision of a female police officer.

The criminal defense lawyer filed a motion to suppress the urine test results arguing that the police needed a search warrant to obtain a urine sample for a standard DUI case. The criminal defense attorney argued that giving a urine sample is an unnecessary invasion of a person’s privacy. The court noted that, unlike blood samples, which require a needle and puncture of the skin, giving a urine sample is a fairly non-intrusive process. On the other hand, a urine sample can be tested for a wide range of substances while breath can only be used to test alcohol content. The court agreed that giving a urine sample implicates a person’s right to privacy, however the state’s interest in obtaining evidence, whether that involved alcohol consumption or the use of drugs, outweighed those privacy interests. The court held that the police could request the urine sample without a search warrant since they had probable cause to arrest the suspect for DUI and allowed the state to use the urine test results against the defendant in court.

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In Florida, the crime of DUI means that a person cannot operate a motor vehicle while impaired from alcohol or drugs.  It does not mean a person cannot drink and then drive.  Of course, to be safe, it is always best to avoid driving after consuming any alcohol.  However, if a person has a couple of drinks and is not impaired, it is not illegal to drive in Florida.  The crime is not drinking and driving; the crime is drinking while impaired from alcohol or drugs to the extent one’s normal faculties are compromised. The problem, of course, is that police officers are the ones who determine whether a person is guilty of DUI at the outset.  Police officers will often draw conclusions based on a quick initial impression and then view everything that happens next in light of the conclusion they have already made.  This is one reason why every DUI report we have ever read seems to have the same “observations” from the police officer- odor of alcohol, slurred speech, bloodshot, watery eyes and similar descriptions. People need to understand that a DUI investigation is completely subjective. If the police officer thinks you are impaired from alcohol, everything he/she does next is designed to acquire subjective evidence to support the decision he/she has already made, which is to arrest you for DUI. And DUI investigations are completely subjective. The judge of field sobriety tests and your appearance and demeanor is a police officer who, in almost every case, has already decided you are impaired, which is why he/she asked you to take the tests to begin with.

Despite that, it remains true that merely drinking and driving is not illegal. You might need to get to a judge or even an appellate court before this fact is recognized, if at all, but police officers and the state are required to prove more than mere drinking and driving. In a recent DUI case south of Jacksonville, Florida, a driver was stopped for a routine traffic violation, and the police officer suspected he was driving while impaired from alcohol. The police officer documented the standard observations- odor of alcohol, slurred speech, watery eyes. The driver also admitted to having one drink. Based on that, the police officer had the driver exit the vehicle and perform field sobriety tests.

The criminal defense lawyer filed a motion to suppress all of the evidence that was obtained after the driver was ordered to exit her vehicle. Police officers cannot detain a driver and conduct a DUI investigation without evidence of impairment. In this case, there was nothing disturbing about her driving that would indicate impairment. The odor of alcohol only provided proof that the driver had consumed an alcoholic beverage(s), not that she was drunk. The bloodshot eyes and slurred speech are not sufficient to establish impairment, and it is probably relevant that all judges know police officers put that in every DUI report.

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In Florida, most DUI cases (driving under the influence of alcohol) are the result of traffic stops and then subjective DUI investigations and then requests for the driver to submit to a breathalyzer test after he/she has been arrested.  The police cannot generally request a blood sample from a person, or force a suspect to give a blood sample, unless the Florida statute authorizes it or there are emergency circumstances. There are DUI cases in Florida where a police officer can get a DUI suspect’s blood to be sent to the crime lab and tested for alcohol content. There is a Florida statute that allows the police to obtain a blood sample from a DUI suspect in certain circumstances.

If a driver has been involved in an accident and there is probable cause to believe the driver was under the influence of alcohol and that driver has caused a serious injury or death, the police can then require the driver to provide a blood sample for testing. There is some ambiguity over what a serious injury is and there is often conflict over whether there is probable cause to believe the driver was under the influence of alcohol.  For instance, just because someone involved in the crash was taken to the hospital does not mean there was a serious injury.  Likewise, just because the police smell alcohol on a driver does not automatically mean there is probable cause to believe the driver is under the influence of alcohol.

But there is also another factor that gets overlooked in some DUI cases. The police must have evidence that the driver whose blood they are seeking caused the crashed that resulted in the serious injury or death. Police often come to these accidents after the fact. Therefore, they cannot necessarily rely on their observations of the crash to determine the cause. They must perform some level investigation to make some credible determination of causation of the crash and the resulting injury or death. Without that, the police cannot order a DUI suspect to give blood. This does not mean a driver cannot be charged with DUI. It just means the police cannot obtain the driver’s blood, and if the police do so without establishing any causation, the criminal defense lawyer can get the evidence of the blood alcohol test thrown out of court.

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A recent case involving a DUI arrest near Jacksonville, Florida raised the issue of what constitutes a “crash” under the Florida DUI laws.  More specifically, does a crash require some sort of property damage or injury or is a collision simply enough regardless of whether any vehicle is damaged or a person is injured?  Why is this important?  It could make all of the difference in a DUI case.

In Florida, a police officer is not generally allowed to arrest a person for a misdemeanor crime without a warrant unless he/she or another police officer observes the crime being committed. There are exceptions to this rule in various areas of criminal laws. In DUI cases, the exception is that police officers can arrest a person suspected of DUI without observing the crime if the police officer discovers evidence to support the DUI arrest after a traffic crash. So, if a police officer learns that a person is driving erratically and may be drunk from a lay witness and only finds the suspect after he is outside of his car, never having seen him driving or in the car, the officer would not be able to make the DUI arrest because the criminal conduct did not occur in the police officer’s presence.

On the other hand, if a person is driving under the influence of alcohol or drugs and gets into a traffic crash, the police are called and the police officer arrives after the suspect exits the vehicle, the police officer can still make a DUI arrest if the officer obtains evidence that the suspect was driving the vehicle and was impaired.

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In the State of Florida, you can be compelled to perform Field Sobriety Exercises.  This doesn’t mean that the officer can physically force you to perform the exercises.  It simply means that the officer does not have to obtain your consent and your refusal to perform the field sobriety exercises can be used against you in court.  So how would this play out?  Let’s take a look:

What are Field Sobriety Exercises?

Field Sobriety Exercises are physical tasks that an officer will ask you to perform when that officer suspects that you are driving while under the influence of alcoholic beverages or drugs.  Some of the exercises are standardized, meaning that the instructions and the way they are conducted are the same everywhere in the United States.  Some of the exercises are not.  Some examples of Field Sobriety Exercises are the Walk and Turn exercise, the Finger to Nose exercise, the One Leg Stand Exercise, the Rhomberg Alphabet exercise, and the Rhomberg Balance exercise.  Each exercise is designed to divide your attention so you are concentrating on different tasks.  For example, during the walk and turn exercise, you have to listen to instructions, remember to keep you arms by your sides, place one foot in front of the other heal to toe, walk down a line, take 9 steps, turn taking small steps during the turn and take 9 steps back, all while not swaying, raising your arms or stopping.  The officer will mark down each thing that you do wrong and will form an opinion on whether you are impaired or not based on how you do on the Field Sobriety Exercises.  In the real world however, the officer may have already formed an opinion about whether you are impaired before you ever start the field sobriety exercises and they may use the results of the field sobriety exercises to gather evidence against you.

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In most DUI (driving under the influence of alcohol or drugs) cases in Florida, the police arrest a person they believe is driving while impaired. That DUI suspect is taken to the jail and booked. Only after the suspect is taken to the jail do the police ask the suspect to take a breathalyzer test to test the suspect’s blood alcohol level.  In some cases, where the breathalyzer test is not practical, often when there is an accident and the suspect is taken to the hospital, the police will request a blood draw to test that blood for alcohol content.

A DUI suspect may refuse a breath test or a blood test.  Due to the implied consent laws in Florida, a refusal may come with certain consequences (such as a longer driver’s license suspension and the state trying to use the refusal as evidence in court), but the suspect cannot be forced to submit to a breath, blood or urine test as a general rule.

However, if the DUI suspect refuses the breathalyzer or a blood or urine test, the police may try to get a subpoena for the blood that they can send to the lab to test for alcohol content.  Alternatively, the state can try to subpoena a person’s medical records in cases where a suspect went to the hospital after a crash, and the hospital tested the suspect’s blood for alcohol or drugs.  It’s not something we see often, but a subpoena is a tool the police and the state have to obtain evidence when it is otherwise difficult or impossible for the state to get that evidence. In a DUI case, that evidence can be the difference between a strong case and a weak case.

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In DUI cases, the police generally observe a driver break some traffic law and then initiate a traffic stop. If the police officer claims to observe evidence that the driver is drunk or otherwise impaired, that officer will start a DUI investigation.  However, the police officer in Florida does not have unlimited time to establish probable cause to make a DUI arrest. If there is an unnecessary and lengthy delay during this DUI investigation, further evidence of impairment can be suppressed.

In a DUI case just south of Jacksonville, Florida, a police officer stopped the defendant for failing to maintain his lane. The officer approached the defendant and determined that there was evidence that he was impaired from alcohol. For some reason, the first officer did not continue with any DUI investigation and called other officers to the scene. The next police officer to arrive did not have a video camera in his car so another officer was called.  Twenty-five minutes after the initial stop, the officer who conducted the DUI investigation arrived to investigate the DUI. Three minutes later, he started his DUI investigation. Nothing was done during that time to advance the DUI investigation. The defendant was kept in his vehicle at the scene waiting for 28 minutes. After the DUI investigation was completed, the defendant was arrested for DUI.

The criminal defense lawyer filed a motion to suppress all of the evidence of the DUI investigation because the defendant was kept at the scene for an unreasonable period of time without evidence that he had committed a crime. That evidence did not come until at least 28 minutes after the initial traffic stop. The court agreed and suppressed the evidence.  There is no bright line rule in Florida which says how long the police can keep a DUI suspect at the scene. It depends on the circumstances of the case- for instance, the reason for the delay, how much evidence the police have of DUI at each stage of the process and the length of the delay.  However, in this case, there did not appear to be a legitimate reason for the delay to start the DUI investigation so 28 minutes was considered too long of a detention. If the detention is unreasonably lengthy, it is unlawful, and if it is unlawful, evidence obtained during that detention is not admissible.

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In Florida and other states, when the police arrest a a person they suspect is guilty of DUI (driving under the influence), the police will almost always ask that person to submit to a blood alcohol test. First, as many people are unaware, this request and the actual test in Florida almost always takes place after the suspect has been arrested and taken to the jail.  Therefore, if the suspect blows a low number, or even 0.0, the police are not likely to release, or “unarrest”, the suspect. That person is spending the night in jail regardless of a low or high alcohol reading.  Also, blood alcohol tests are normally administered in the form of a breath test, or breathalyzer.  After the arrest and once the person is taken to the jail, the suspect is taken into a room where the breathalyzer operator is located, and he/she is asked whether he/she will submit to the breathalyzer test.

There are DUI cases where it is not feasible to administer a breathalyzer test.  One example would be where the suspect is injured after an accident and taken to the hospital.  In that case, the police officer may be justified in requesting a blood draw so that blood can be sent to a lab and tested for alcohol content. However, the police in Florida cannot request a blood draw in every situation.

In a recent DUI case near Jacksonville, Florida, the defendant was in a serious accident. When the police arrived, the defendant was unconscious. He was taken to the hospital. The police officers at the scene of the crash said they smelled alcohol coming from the defendant and the vehicle. At the hospital, the police officer had the nurse draw blood from the defendant. After the blood was tested and found to have a blood alcohol content above the legal limit, the defendant was charged with DUI.

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One of the more common cocktail party questions criminal defense attorneys get asked is whether you can get a DUI while driving a golf cart, or even riding a bicycle.  In Florida, the answer is yes.  You can be arrested, charged, convicted and sentenced for DUI (Driving Under the Influence) for operating a golf cart or a bicycle while under the influence of alcoholic beverages or controlled substances to the extent that your normal faculties are impaired.  This will become more and more of an issue with the creation and expansion of golf cart communities, like our very own Nocatee in Ponte Vedra, Florida, where you will see scores of golf carts traveling between residences and local bars and restaurants on a daily basis.

“Surely I can’t get a DUI on a lawn mower or a horse?“

AdobeStock_117707955-300x200Believe it or not, yes, you can.  Florida’s DUI statute, Fla. Stat. §316.193, prohibits a person from driving, or being in actual physical control of, a vehicle while under the influence of drugs or alcohol or while having a .08 BAC level or more.  Notice that the word “motor” is not present before the word “vehicle.”   The legislature specifically wanted the DUI statute to apply to more vehicles than just motor vehicles.  So, what is the definition of a vehicle for purposes of the DUI statute?

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