Articles Posted in DUI

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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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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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In Florida, most people are arrested for DUI (driving under the influence of alcohol or drugs) after a police officer observes them driving a vehicle while allegedly impaired. While the DUI crime is called “driving” under the influence, a person in Florida does not actually have to be driving to be arrested and convicted of a DUI charge. There are two ways to be guilty of DUI. Driving, of course, is one way. The statue provides for another method. If a person is in actual, physical control of the vehicle while impaired from alcohol or drugs, that person can be arrested and convicted of DUI even if the police officer, or anyone else, never sees that person driving. So, what does actual, physical control of a vehicle mean in Florida? There have been numerous cases that have discussed situations where a DUI suspect was found in or near his car and whether that constituted actual, physical control sufficient for a DUI conviction. Some of the factors include how close the suspect is to the driver’s seat, where the keys are located and whether the vehicle is operable.

In a recent DUI case south of Jacksonville, Florida, the suspect was involved in a minor auto accident, and the police were called. When the police officer arrived, he saw the suspect outside the vehicle leaning against the car on the driver’s side and another person was leaning against the passenger side of the vehicle. The keys were in the ignition.  The officer assumed the suspect on the driver’s side, who was the owner of the vehicle, was the driver of the vehicle and arrested her for DUI after determining that he was impaired from alcohol. At the trial, the criminal defense lawyer moved for a judgment of acquittal because there was no evidence that the defendant was driving the vehicle and insufficient evidence that she was in actual, physical control of the vehicle. The Florida law says the suspect must be in or at the vehicle and have the capability to operate the vehicle. The state must also show the keys were either in the ignition or close enough to the defendant to allow her to start the vehicle and drive away.

In this case, the keys were in the ignition and the suspect was close enough to the vehicle to be in actual, physical control. However, the DUI conviction was reversed because both the defendant and the person leaning against the passenger side were jointly in control of the vehicle, and both of them had the same capability to operate the vehicle. In a case where more than one person has actual, physical control of the vehicle (i.e. joint occupation or control), the state must provide independent proof to establish the defendant was in constructive possession of the vehicle. The fact that she was the owner of the vehicle and on the driver’s side was not sufficient. Without independent proof that the suspect was driving or had control of the vehicle to the exclusion of the other party, the state could not meet its burden of a conviction for 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.