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.