Articles Posted in DUI

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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.

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Most DUI cases are initiated in a similar manner here in Florida. A police officer will claim to observe a driver violate some traffic law and then will pull that driver over. While the police officer will begin to check the driver’s license and consider writing a traffic ticket, if the police officer believes the driver is impaired from alcohol or drugs at some point, the police officer will likely abandon the traffic ticket process and initiate a DUI investigation. This will involve asking the driver questions such as where he/she has been and whether he/she has had anything to drink. This will likely transition into a request to perform field sobriety exercises. If the driver agrees to submit to them and the police officer subjectively determines the driver failed (which is likely since the police officer, who is the sole judge of the driver’s performance, already believes the driver to be impaired), then an arrest for DUI is likely.

A police officer is permitted to turn a routine traffic stop into a DUI investigation if there is specific evidence that the driver is impaired and the process does not take too long. Any time a police officer keeps a driver for a traffic ticket or criminal investigation, it is considered a detention under the law. A police officer can detain a person but only so long as necessary for a lawful purpose. If the purpose of the detention is to address a traffic violation, the police officer can only keep the driver for as long as it normally would take to write a traffic ticket. If there is specific evidence of a criminal violation, i.e., a DUI, the police officer can only keep the driver long enough for a normal DUI investigation and only so long as there continues to be evidence of a DUI.

As an example, in a DUI case just south of Jacksonville, Florida, a police officer pulled a vehicle over for a traffic violation. The police officer began addressing the traffic violation but then believed that the driver was impaired from alcohol. Instead of initiating a DUI investigation, the police officer called for another officer to come to the scene to handle the DUI investigation. Sometimes, a police officer will call for backup or another officer who is better trained to investigate DUI’s to take over a situation where the officer believes the driver is impaired. In this case, it took about 15 minutes for the backup officer to arrive and start the DUI investigation. The initial officer did nothing during that time, and the driver was left to wait for the second officer. Once the second officer arrived, he pursued the DUI allegation and ultimately arrested the driver for DUI.

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Most DUI (driving under the influence of alcohol or drugs) cases in Florida start with a traffic stop. A police officer will allege that he/she saw a driver commit some sort of traffic infraction. The police officer will pull the driver over. If the police officer believes the driver is impaired from alcohol or drugs, the police officer will initiate a DUI investigation. However, if the DUI arrest is valid, it must start with a legal basis for the initial traffic stop. If the police officer did not have a lawful reason to stop the driver, it is likely that the DUI case will be thrown out in court.

In a case near Jacksonville, Florida, a police officer was on patrol when he heard the defendant honk his horn several times without any apparent reason. The police officer conducted a traffic stop and gave the driver a ticket for improper use of his horn. The police officer then detained the driver for a DUI investigation because he found his conduct suspicious after the traffic stop. This DUI investigation ultimately resulted in a DUI arrest.

The criminal defense lawyer filed a motion to suppress based on the argument that the initial traffic stop was not lawful. Florida law requires every motor vehicle to have a horn in good working order and for drivers to use it to ensure the safe operation of the vehicle. The statute does not prohibit the use of the horn for any particular reason. A police officer does have the right to stop a driver for a legitimate public safety reason, but none existed in this case. Therefore, the stop would only be valid if the defendant had violated some traffic law. Honking one’s horn for no apparent reason is not such a violation. As a result the traffic stop was not lawful.

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When a driver is stopped by the police and the police officer initiates a DUI (driving under the influence of alcohol or drugs) investigation, the police officer will almost always ask the driver to submit to a breathalyzer test. The breathalyzer machine is designed to measure the amount of alcohol in one’s system. The legal limit in Florida is 0.08. What many people do not realize is that the police only offer the breath alcohol test or the blood alcohol test at the jail after the driver has been arrested for DUI. Therefore, it is fairly obvious that the police are not seeking the breath or blood alcohol test as part of an objective determination into whether the driver is impaired; the purpose of the breath or blood alcohol test is for the police to try to obtain additional evidence to support the DUI prosecution. In other words, no one is getting “un-arrested” after a favorable breathalyzer reading. The police officer has already concluded that the driver is guilty of DUI as a result of the arrest he/she has already effected.

While a person gives his/her implied consent to submit to a breathalyzer test when he/she agrees to accept driving privileges in Florida, some people refuse the test when the time comes. Some people do not trust a system that offers the test only in the jail after the arrest for a DUI and do not trust a police officer who did not trust a driver who claimed to not be impaired. Can the state require a person to give a breath or blood sample without a warrant if the driver refuses and punish a person for that refusal? Yes and no.

A recent United States Supreme Court case looked at two situations where drivers refused a breath test and a blood test and the state (not Florida) charged them with separate crimes for the refusal. If a person has a right to refuse a breath test and/or a blood test under the Fourth Amendment, then the state cannot prosecute someone for the refusal.

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In Florida, vehicular manslaughter cases are very serious. That seems obvious, but states and counties treat these crimes differently depending on how prosecutors’ offices and judges view them. Vehicular homicide often involves a defendant who did not intend to commit a crime and has never been in trouble before doing something with the most tragic results. Some places view this as worthy of probation. Others view it as worthy of long prison sentences. In Jacksonville, Florida, they are most often viewed in the latter manner and come with significant prison sentences.

Most vehicular homicide cases involve a person who causes a crash that results in death while being impaired from alcohol or drugs. In that case, the police officer will investigate the driver at the scene, do field sobriety exercises if practicable, request a breathalyzer test after the arrest at the jail or request that blood be drawn for testing if the driver goes to the hospital.

However, the state can charge a person with vehicular homicide even if no drugs or alcohol was involved with the crash. The law in Florida distinguishes accidents involving negligence from those involving reckless driving. Negligence cases normally involve a driver violating one or two traffic laws resulting in a crash. For example, if a person was speeding, ran a red light or pulled out in front of another vehicle and caused a deadly crash, that is likely to be considered negligence. Negligent conduct results in traffic tickets and lawsuits but not criminal charges. If a person’s driving goes beyond that kind of negligence and is particularly egregious, it can be considered reckless. For instance, driving 65 miles per hour in a 45 miles per hour zone and causing a crash is probably going to be considered negligence given how common speeding is. However, driving 85 mph erratically in a 45 mph zone in the rain certainly comes closer to recklessness and criminal behavior. Ultimately, the police decide if it is sufficient for an arrest, the prosecutor decides if it is sufficient to file criminal charges and a judge or jury decides if the defendant is in fact guilty of the crime.

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In Florida, when a person gets arrested for DUI (driving under the influence of alcohol or drugs), he/she is taken to jail and booked into the jail. Only after the arrest and being processed into the jail is the person offered a breathalyzer test to measure a person’s blood alcohol level. Never in the history of DUI arrests have we heard of someone being unarrested after blowing in the breathalyzer and getting a result under the 0.08 legal limit, or even after getting a result of 0.00. Therefore, we can assume the purpose of the breathalyzer is not to objectively determine if the defendant is impaired and guilty of DUI so much as for the police to try and acquire more evidence against someone they are already convinced is guilty o DUI.

A person in Florida who has been arrested for DUI can refuse a breathalyzer test, but that refusal may come with increased penalties including a license suspension or a separate criminal charge for multiple, separate instances of a refusal. However, many people arrested for DUI do not necessarily trust the police when it comes to a breathalyzer test and the true purpose of the breathalyzer test taken after a DUI arrest. In that case, a person arrested for DUI can ask the police officer for an independent blood test. This would be a test administered by an entity, like a private laboratory, that is completely separate from the police. Many police officers do not know that a DUI suspect has a right to request an independent blood test, and the police department has a duty to make reasonable accommodations for the independent blood test. This might include the obligation to give the suspect a phone call and a ride to a lab that is open. Police officers like making arrests, and they like when arrests are finished. They may not want to continue to process and drive the suspect to a lab for an independent test. However, if the DUI suspect makes the request and there is a reasonable way to contact a lab and get the suspect to the lab, the police officer may be obligated to do just that. Jacksonville, Florida has several lab testing companies that provide blood tests for people every day.

If a DUI suspect makes a reasonable request for an independent blood test and the police officer refuses to accommodate the DUI suspect, the criminal defense attorney can move to have the evidence of the police department’s breathalyzer test thrown out.

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When a police officer pulls a driver over in Florida and believes that the driver is impaired from alcohol or drugs, that police officer will begin a DUI investigation. We would like to say that this is an objective evaluation of whether the driver is impaired, but most often, it appears that the police officer has already formed a conclusion that the driver is impaired and then tries to develop evidence to support that foregone conclusion. Rather than viewing the evidence objectively, the police officer often draws conclusions with the preconceived notion that the driver is impaired and guilty of DUI.

In other words, two people can watch a person walk a straight line and come to different conclusions. But, if one of those people already believes the driver is impaired from alcohol or drugs, he will very likely view the evaluation differently from someone who has no idea there is a DUI investigation taking place. This is particularly try if the former person’s job is to make DUI arrests.

During DUI investigations in Florida, the police officer will almost always ask the driver to participate in field sobriety exercises. These are completely voluntary and can be refused without a direct negative impact on one’s driving privileges. Most importantly, they are completely subjective, meaning whether the driver passes or fails depends completely on the opinion of the officer, who already thinks the driver is impaired or he/she would not be going through this in the first place.

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Most DUI cases start with a police officer observing a suspect driving a vehicle in an erratic manner or at least in such a way that one or more traffic laws are violated. This allows the police officer to stop the driver and have an encounter. However, occasionally, we see DUI cases that begin when the suspect is not driving at all. Many of these DUI cases begin when a police officer observes a person sleeping in a vehicle that is parked, sometimes legally, sometimes illegally, and sometimes in the roadway. Other times, a concerned citizen sees a person sleeping in his/her car and calls the police to check it out.

It is certainly not illegal to sleep in your car, so the police are not permitted to detain you or arrest you based on that alone. Of course, where your car is parked when you are sleeping in it will be a factor in whether the police officer has sufficient cause to move forward with a criminal investigation. If your car is in your driveway or in a regular parking spot, the police officer will have less of a legal reason to wake you up and question you. If you are partially in the roadway, there would be more evidence to suggest driving while impaired from alcohol or some other problem which gives the police officer more legal reason to investigate.

Generally, when a police officer sees a driver asleep in a vehicle, that police officer can come to the vehicle to check on the driver. Sleeping alone is not sufficient evidence of impairment from alcohol so the officer cannot detain the driver and start a DUI investigation. The police officer can check and see if there appears to be a medical emergency and if so, go into the vehicle to help. However, the officer cannot assume a medical problem; the officer must have specific evidence of a medical problem. The officer cannot assume the driver is drunk either. If there are alcohol containers near the driver, that may be enough evidence of a DUI to move forward with an investigation, but absent specific evidence of alcohol or drugs, the police officer cannot start a DUI investigation. Basically, sleeping in the car can prompt a police officer to look inside the vehicle, but unless there is specific evidence of a medical problem or alcohol/drugs, the officer has to leave the driver alone after a brief encounter.

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In Florida, many DUI investigations and arrests begin with a simple traffic stop. Sometimes the police officer suspects the driver is driving under the influence of alcohol before he/she makes the traffic stop and sometimes the police officer claims to develop suspicion after making contact with the driver. Police officers use several clues or factors to justify a DUI investigation, although as criminal defense lawyers in Florida, we see the same few “observations” show up over and over again.

Police officers are allowed to make a traffic stop based on an observation of a traffic violation, such as speeding, running a red light or driving in and out of the traffic lane while endangering other drivers. This gives the police officer authority to stop the driver and issue a citation for the traffic violation. If the police officer wants to extend the encounter to investigate for DUI (or any other crime for that matter), the police officer must be able to articulate specific indicators of criminal activity. This is, again, where we see the same comments show up over and over. For instance, the police officers will almost always testify that he smelled an odor of alcohol coming form the driver and that the driver had a flushed face and watery, bloodshot eyes and was slurring his/her speech. Those “observations” come standard with just about any DUI police report. The problem is that some of them often cannot be independently verified, even if there is a DUI video.

In any case, all of those observations must be sufficient to allow the police officer the right to hold the driver for a DUI investigation which usually includes a request for the field sobriety test and a request for a breathalyzer test after the driver is arrested for DUI and taken to the jail. Every case is different (even if the DUI police reports look very similar), and each one must be evaluated on its own merits. Almost all DUI police reports are going to mention odor of alcohol. In Florida, this alone is not a sufficient legal basis to detain a driver for a DUI investigation. Remember, the crime is driving while impaired from alcohol which is not the same as driving after having had alcohol to drink. The police officer must show not only that the driver had consumed alcohol (or drugs), but that the driver was also impaired from the alcohol (or drugs). Odor of alcohol is mere evidence of drinking which, by itself, is not illegal.

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As a criminal defense firm in Jacksonville and Orlando, we often get asked the question, “Should I take the breath test if I’m stopped for DUI?” While this is a very specific question, we always give a wider answer. When someone is pulled over, it is usually for a traffic violation (i.e. speeding, running a red light or stop sign, weaving). Once the officer approaches the driver’s side of the vehicle, they often claim that they developed reasonable suspicion to believe the person was impaired. For example, they will use the buzz words, “bloodshot, water eyes,” “slurred speech,” and “flushed face.” Based on these observations, the officer will ask the person to step out of the vehicle. The officer will again make observations about whether the person can maintain their balance, whether they fumble with their license and registration, and whether their answers are incoherent. It is important to understand that officers are often looking for signs of impairment, while they ignore what I like to call “signs of non-impairment.” The signs of impairment will make it into the police report. The signs of non-impairment often will not.

If the officer believes there is reasonable suspicion that the person is impaired, he or she will ask the person to perform what we call “field sobriety tests,” while the officer will call them “field sobriety exercises.” Field sobriety tests can include the finger to nose test, walk and turn test, rhomberg alphabet test, one leg stand test, and rhomberg balance test. We have noticed that when there is a video, the officer’s explanation of what happened often does not match what is in the video. Whether a person appears impaired is an opinion. And reasonable people can disagree. Regardless, the officer has an interest in making sure that the eventual arrest is justified. Therefore, the police report will often embellish what actually happened. For example, the report may read, “the suspect was swaying from side to side,” which makes a visual image in the mind of a person swaying dramatically. However, often we will watch DUI videos where there is no clear sway and it appears to us, and often to jurors, that the person’s sway is natural and not indicative of impairment.

But back to the original question. The field sobriety tests are not required by law. A person cannot lose their license or be prosecuted simply for declining to perform the field sobriety tests. However, if a person is arrested for DUI, the State can use their refusal against them in court. In other words, the prosecutor can stand in front of a jury and argue, “[l]adies and gentlemen, why would the defendant refuse to perform field sobriety exercises unless he knew that he was impaired?” The DHSMV can also use the refusal to perform field sobriety tests as evidence to support the license suspension.