Articles Posted in DUI

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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.

 

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In Florida, a police officer is not normally permitted to arrest a person for DUI (driving under the influence of alcohol or drugs) unless the police officer observes the suspect actually commit the crime.  This applies to standard DUI’s, not DUI’s involving an accident.  This is not an issue in most DUI cases in Florida as DUI arrests are usually the result of a traffic stop after the police officer claims to observe the driver commit some traffic violation.

However, there are situations where a police officer comes upon a person he/she believes to be impaired, but the driver is no longer operating the vehicle or in actual physical control of the vehicle (usually characterized as being inside the vehicle in the driver’s seat with the keys).  In these cases, the police officer may not be able to make a DUI case even if he/she has reason to believe the suspect was recently driving the vehicle while impaired from alcohol or drugs.

For instance, in a DUI case just south of Jacksonville, Florida, a witness observed the suspect driving erratically and then come to a stop in the roadway.  The witness was in the medical field and decided to stop and see if the driver needed any medical assistance.  The witness got the driver out of the vehicle, obtained her keys and drove the vehicle off to the side of the road.  It became apparent to the witness that the driver was impaired from alcohol.  A police officer arrived when the driver and the keys were already outside of the vehicle.  The police officer arrested the driver for DUI based on his observations that she was drunk and the witness’s statement that she had been driving.

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In Florida, most DUI (driving under the influence of alcohol or drugs) cases involve the police requesting the defendant take a breathalyzer test at the jail. This test is normally offered only after the police make the DUI arrest. Therefore, if the defendant has a low score on the breathalyzer, or even a 0.00 result, the defendant is still arrested for DUI. In many cases, the police will then request a urine or blood sample to test for other substances. The police do not admit error after making an arrest, and once the police effect the DUI arrest, there is no going back.

There are times when the police can draw blood and send the blood to the lab for testing of blood alcohol content. The police are not allowed to obtain a blood draw when a breath test is viable and reasonable, as in most DUI cases in Florida. However, the DUI suspect can request one, and there are other situations where the blood draw is permissible. This often comes up in DUI cases that involved serious accidents.

In Florida, when a person is involved in a serious accident and has a serious injury that requires a trip to the hospital, it may not be practical to obtain a breath sample from the DUI suspect. In those cases, the police may be allowed to obtain a blood sample at the hospital for testing. The police cannot do it in any situation where there is an accident and the suspect is taken to the hospital with serious injuries. The police need reasonable and sufficient evidence that the suspect was impaired while driving. However, it seems as if that standard is pretty low when serious accidents are involved.

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Does a police officer in Florida have the right to arrest a person who commits a crime outside of his/her jurisdiction? It depends. The general rule is that police officers have no authority to arrest people for crimes outside of their jurisdiction. However, there are exceptions. Some neighboring cities and counties have agreements that allow a police officer to make an arrest for certain crimes in the other jurisdiction. Also, there is such a thing as a private citizen’s arrest, and police officers have the same right to effect a citizen’s arrest in a different city or county as private citizens do. Private citizens in Florida are allowed to arrest another person if that person commits a felony or breach of peace in his/her presence.

In this case, the police officer received a call about a vehicle stopped in the middle of the roadway. When the police officer arrived, he saw that the vehicle was over the city line. He approached the vehicle and saw that the driver was passed out with the car running. The police officer woke the driver, started a DUI investigation and ultimately arrested the driver for driving under the influence of alcohol.

The criminal defense lawyer filed a motion to suppress the evidence of the DUI claiming that the police officer did not have authority to pursue a DUI arrest since the incident occurred in a different city. There was no evidence of an agreement between the police departments in the two cities. The court agreed with the criminal defense attorney for the most part.

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A client recently came to the law firm of Shorstein, Lasnetski & Gihon as a result of a DUI (driving under the influence of alcohol or drugs) arrest in July of 2016. The arrest was actually based on an alleged DUI offense in Jacksonville, Florida from 2013. Most DUI arrests are made at the time the police officer claims to observe the suspect driving while impaired from alcohol or drugs so there is little delay between the alleged offense and the prosecution and court appearances for the charge.

However, in some cases, the police do not make an arrest immediately. For instance, in this case the investigation began when the client was involved in a motor vehicle accident. The client was not in a suitable condition to give a breath sample for the breathalyzer as the client was taken to the hospital to be treated for injuries. In those cases, the police will often attempt to obtain a blood sample from the DUI suspect at the hospital. While breathalyzer tests provide results immediately, blood samples used to test for blood alcohol content need to be sent to the crime lab for testing. As a result, the police usually do not make an arrest until the results come back a few weeks or a few months later, assuming the results show alcohol or drugs were found in the suspect’s system.

In this case, blood was taken from the client at the hospital and sent to the crime lab. The test results came back about a month later. They showed the client had a blood alcohol level of more than three times the legal limit of 0.08. At this point, the Jacksonville Sheriff’s Office obtained an arrest warrant for DUI. Three years later, the DUI charge was dismissed.