Articles Posted in DUI

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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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In Florida, most DUI cases result from a police officer claiming to observe a person violate a traffic law.  The police officer conducts a traffic stop, claims to observe signs of impairment from alcohol or drugs and then initiates a DUI investigation.  DUI investigations normally involve various questions about where the driver has been, what the driver has been doing and how much the driver has had to drink.  The driver, of course, is free to refuse to answer any of these questions.  They are designed to discover evidence that can be used against the driver in a DUI case.  The police officer will also ask the driver to perform field sobriety tests.  These are completely subjective coordination tests that can be difficult and should be refused if the police officer does not have a video camera to record this critical encounter.  Finally, the police officer will normally ask the driver to submit to a breathalyzer test to measure the driver’s blood alcohol level.  Unfortunately, these tests are only given after the DUI arrest.  Therefore, a good number on the breath test will not change the fact of the DUI arrest.  The police officer has a right to request a breath test if there is probable cause to believe the driver is impaired.  While the driver can refuse the breathalyzer test, a refusal will likely result in a longer driver’s license suspension because of the Florida implied consent laws.

The police officer cannot ask for a blood test in normal DUI cases.  There are certain rules that dictate when a police officer can seek a blood draw alcohol test in a DUI case.  Failure to follow these rules will result in any blood alcohol test being thrown out of court.

A driver in a case just south of Jacksonville, Florida had wrecked his motorcycle, and the police officer arrived after the fact.  The police officer claimed to observe the standard factors such as odor of alcohol and slurred speech.  The police officer arrested the suspect for DUI and took him to the hospital due to a potential ankle injury.  At the hospital, the police officer requested a blood sample to test for alcohol content.  The police officer did not mention the possibility of a breathalyzer alternative.  The suspect agreed to the blood draw.  He was treated for an ankle sprain and released.  He was then taken to the jail.

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With some exceptions, police officers generally work for a county or city department.  In Florida, we do have the Florida Highway Patrol and officers who work for multiple agencies and federal law enforcement officers, but most cases of common crime, like DUI cases, will involve a county or city police officer.  Those police officers are generally only allowed to investigate crimes and make arrests for crimes that occur within their jurisdiction.  There are a couple of exceptions. One is when the police officer is pursuing a suspect.  For instance, if a police officer observes a crime occur in his/her county and the suspect runs or drives into the next county, that police officer can chase the suspect into the next county. The police officer cannot chase the suspect forever and should contact a police officer in the next county to take over, but the officer does not have to stop at the county line.  Another exception is when exigent circumstances exist.  These situations are rare and would almost never occur in a standard DUI case.  The third exception is when two police departments have a predetermined agreement in place to assist each other.  These agreements do take place in Florida, but they have to be set out in writing and the particular investigation and arrest have to comply with the terms of the agreement. Two law enforcement agencies cannot just agree to help each other allowing the respective police officers to go into the other counties and make arrests.

In a recent DUI case near Jacksonville, Florida, a police officer observed a suspect he thought was driving under the influence of alcohol (DUI).  However, that police officer was occupied with another matter.  He called a police officer from the neighboring county to investigate.  The second officer came over, found the DUI suspect and ultimately arrested him for DUI.

The criminal defense lawyer filed a motion to dismiss the DUI case because the arresting officer did not have a legal basis to investigate the DUI case and make the arrest out of his jurisdiction.  The state countered by showing the court that there was a mutual aid agreement between the two counties.  However, that is not enough.  There must be a specific agreement between the counties and the particular case must be one that is contemplated by the agreement.  In this DUI case, the agreement discussed cases of emergencies, special events or other situations where the two police departments would assist each other.  It did not cover a DUI case like the one at issue here.  Therefore, the arrest of the defendant out of jurisdiction was illegal, and the DUI case was thrown out.

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A recent DUI case near Jacksonville, Florida had a couple of interesting issues.  Essentially, a police officer was in his patrol car but out of his jurisdiction.  He came across a person riding his motorcycle who had just crashed.  She went over to assist and ultimately determined that he had been driving while under the influence of alcohol (DUI).  The police officer kept the suspect at the scene until proper backup from the that jurisdiction could arrive.  Once a police officer in that jurisdiction arrived, he took over the DUI investigation and arrested the defendant for DUI.  By the time the second police officer arrived, the defendant was no longer driving or on his motorcycle.

The first issue is that a police officer cannot generally make arrests outside of his jurisdiction.  This first officer was in a different county.  It was nice that he went over to try and assist the defendant, but he was not legally authorized to make an arrest of the defendant for DUI. There are exceptions to this rule, for instance, where a police officer is chasing a suspect who goes into another county, or police officers have agreements in place with agencies in other counties or emergency situations where felonies occurred.  However, none of those applied here.

There is something in Florida law called a citizen’s arrest.  Citizens can arrest other people for felonies and breach of peace.  A police officer outside of his jurisdiction has the same right to effect a citizen’s arrest as a normal citizen does.  A DUI that does not involve a serious injury or death is not a felony, so if this was to be a valid citizen’s arrest, it would have to be considered a breach of peace.  A breach of peace is a generic legal term.  It is like obscenity- you know it when you see it, but it generally is going to require an element of disturbing the peace.  The court determined this was not a breach of peace situation as the defendant was not causing any disturbance to others when the police officer found him.  Certainly, erratic driving that endangers others could be a breach of peace, but this officer did not observe that.  Because there was no right to make a citizen’s arrest and this officer was not in his jurisdiction, the officer had no right to try and keep the defendant at the scene to wait for the second officer.

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In most DUI (driving under the influence of alcohol or drugs) cases in Florida, a police officer will observe a person driving erratically or violate a traffic law and pull that driver over.  The police officer will claim to observe evidence that the driver is impaired from alcohol or drugs and proceed with a DUI investigation that includes questioning, field sobriety tests (if the driver agrees) and a request to submit to the breathalyzer machine.  There are other ways for DUI cases to start (an accident, a DUI checkpoint, a driver asleep in a parked vehicle), but this is the most common.

However, in a recent DUI case near Jacksonville, Florida, a police officer responded to a incident at a local bar. He observed the defendant next to her car, and believed that she was highly intoxicated.  He told her not to drive and warned her that he would pull her over if he saw her on the roads.  Approximately an hour later, the police officer drove to the bar and saw the suspect drive her car drive out of the parking lot.  Although she had not violated any traffic laws, he pulled her over.  He conducted a DUI investigation, determined that she was drunk driving and arrested her for DUI.

The criminal defense lawyer filed a motion to suppress the evidence and have the DUI case dismissed because the police officer did not have a legal basis for stopping the defendant.  A police officer must have probable cause to stop a driver, and that almost always comes from actually observing the driver commit a traffic violation.  At a minimum, a police officer normally has to testify that he/she observed the suspect drive erratically which prompted the officer to conduct a traffic stop and investigate a possible DUI.  In this case, there was no such improper driving.

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