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Articles Posted in DUI

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In most DUI (driving under the influence of alcohol or drugs) cases in Florida, the police officers will conduct their routine (and highly subjective) DUI investigations after a traffic stop, which includes a request for field sobriety tests at the scene and then a request for a breathalyzer test at the jail after the DUI arrest. However, some DUI cases are handled differently due to the circumstances, and the state will try to obtain evidence of impairment a different way.

In a DUI case south of Jacksonville, Florida, the police learned of a vehicle that was involved in a crash where the driver then fled the scene of the crash. The police had the license plate number of the vehicle and went to the owner’s address. At that address, they saw the vehicle involved in the crash, but the owner was not there. An occupant of the residence told the police that he left in a different vehicle. The police then went to search for that vehicle. When they found it, the police made a traffic stop and conducted a DUI investigation at the scene. The police officer made all of the standard observations at the scene (odor of alcohol, swaying, slurred speech, bloodshot and watery eyes, etc.) and arrested the defendant for DUI. As he was being arrested, the defendant claimed he was having medical problems. As a result, the police took him to the hospital where medical personnel took a blood sample for the purposes of diagnosis and treatment.

The state later sent a subpoena to the hospital to obtain those medical records to see the blood alcohol content. The criminal defense lawyer objected, but the court allowed the subpoena and evidence of the medical records. The court determined that the medical records were relevant to the DUI investigation which was the legal standard since this was not a blood draw elicited by the police for the purposes of the DUI case but a medical blood draw elicited by the medical personnel for diagnosis and treatment. If the court determines the medical records are relevant to the DUI case, the criminal defense attorney would have to show bad faith by the state to keep that evidence out of the case.

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In Florida, most DUI cases involve some alleged traffic violation followed by a DUI investigation and an arrest.  If the police officer thinks the driver is impaired from drugs or alcohol, and usually the officer makes that decision early and quickly, that officer is going to make the arrest. Everything else he does is designed to gather evidence to support the decision he has already made. Some people think the police officer will offer a breathalyzer test before an arrest to determine if an arrest for DUI is, in fact, appropriate. But that is not how it works. Essentially, there is a traffic stop, the police officer decides the driver is DUI, collects evidence such as field sobriety test results, makes the arrest, takes the driver to jail, books the driver into the jail and only then requests the breathalyzer test. So, the breathalyzer test is not something a driver can do to avoid an arrest. The arrest is a done deal at that point.  It is just another tool the police use to try to bolster their DUI case.

Most DUI cases involve a request for a breathalyzer test at the jail. However, there are situations where a breathalyzer test is not feasible, for instance, if the defendant was injured in an accident and had to be taken to the hospital or is otherwise unable to provide a breath sample. In that situation, the police might have the option of getting the driver’s blood to test for alcohol content. However, there are legal limitations to getting blood in DUI cases, and the police cannot always do it just because a breath test would be inconvenient.

In a case south of Jacksonville, Florida, a driver was injured in a single vehicle accident. A police officer responded and smelled alcohol coming from the vehicle. The driver was unconscious and taken to the hospital. The driver was not able to provide a blood sample so the police officer asked medical personnel to obtain a blood sample to be tested for alcohol content. The police officer did not seek a search warrant before getting the blood sample. After the blood tested well over the legal limit in Florida, the driver was arrested for DUI with injury.

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In Florida, if a police officer pulls a driver over and there is any indication of alcohol or impairment, that officer is likely to initiate a DUI investigation. That will usually involved specific questions about drinking, field sobriety exercises and a breathalyzer at the jail after the driver has been arrested. However, it is important to understand that drinking and driving is not a crime and neither is having an alcoholic beverage in the vehicle (although open container is a civil violation). The crime is driving while being impaired from alcohol or drugs. Additionally, police cannot initiate a criminal investigation, whether for DUI or another crime, based on speculation or a hunch. The police officer must have facts supporting a reasonable suspicion that the driver is impaired from alcohol or drugs.

The police commonly use odor of alcohol as a basis to start a DUI investigation. However, odor of alcohol does not prove impairment. It only tends to prove someone has had one or more alcoholic drinks or has alcohol in the vehicle. This alone is not sufficient to investigate or arrest for DUI. In a recent case south of Jacksonville, Florida, the defendant was stopped by a police officer for speeding. When he approached the vehicle, the officer said he smelled alcohol and saw an open drink in the center console. The police officer later wrote the usual DUI observations in his arrest report (bloodshot and watery eyes, slurred speech, difficulty finding his license, etc.), but those were not used as a basis for the DUI investigation in the beginning.

The criminal defense lawyer filed a motion to suppress the field sobriety tests results and other evidence presented by the police officer after the defendant was ordered out of his vehicle. The criminal defense attorney argued that the police officer did not have a legal basis to order the defendant to exit his vehicle and request the field sobriety tests because he did not have reasonable suspicion that the driver was impaired, only that he may have had an alcoholic drink at some point.  The court agreed and threw out the evidence of the DUI. The court ruled that speeding, an odor of alcohol and an open container in the vehicle do not establish enough evidence of DUI to allow a police officer to initiate a DUI investigation.  People speed constantly and an odor of alcohol might mean consumption, but not necessarily impairment.

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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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