Articles Posted in DUI

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?

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.

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.

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.

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.

In a recent DUI case in Massachusetts, the state sought to prove that the defendant was impaired from marijuana while driving, thereby rendering him guilty of driving under the influence under that state’s DUI laws.  At the trial, the prosecutor had the arresting police officer testify that based on his observations of the defendant and the field sobriety exercises, the defendant was high on marijuana.  The defendant was convicted of DUI, and the criminal defense lawyer appealed.

The appeal was successful, and the DUI conviction was reversed.  The Massachusetts Supreme Judicial Court ruled that a police officer cannot legally testify that a defendant was high on marijuana based on observations and a field sobriety test.  The court noted that marijuana can have different effects on different people.  Also, the police officer was not an expert on marijuana and its varying effects on people (very few, if any, are; most seem to think they are).  As a result, the police officer’s testimony on that issue was improper to support a DUI conviction.

In just about every DUI case, the police officer is going to ask the suspect to submit to field sobriety exercises.  These are difficult balancing and related exercises performed under adverse circumstances.  The directions for each test can be confusing, and if a suspect says he/she does not understand them or needs for them to be repeated, the police officer will likely suggest that is evidence of impairment rather than the officer’s poor communication or explanation.  The tests are completely subjective, and the judge is a police officer who likely already believes the suspect is impaired, otherwise that judge would not have asked the suspect to perform them in the first place.  Sometimes the suspect’s performance is recorded on a police officer’s camera in his/her vehicle, but often it is not because many police officers do not have video cameras in their vehicles.  If the arrest is not recorded, whether the defendant did well on the field sobriety exercises or completely failed them is a matter of the police officer’s word against the defendant’s word.  However, because the effects of excessive alcohol intake are well known and fairly consistent among different people, police officers are allowed to testify that a defendant who allegedly failed the field sobriety tests was too impaired from alcohol to drive.  That is not the case with regard to marijuana, according to this recent Massachusetts case.

In Florida, there is a law called implied consent.  This means that when you agree to accept driving privileges and a driver’s license in Florida, you agree to submit to a breathalyzer test if the police have probable cause to believe you have driven while impaired from alcohol.  This does not mean you have to submit to a breathalyzer test.  There are many cases where a police officer arrests a person for DUI in Florida without the requisite probable cause, and a DUI suspect might decide not to cooperate with the police officer any further.  Of course, it is then up to the criminal defense lawyer to file a motion to suppress after the fact and the judge to rule on whether probable cause existed to support the DUI arrest and request for a breathalyzer.

Other times, a DUI suspect may not agree to submit to a breathalyzer test because he/she does not believe he/she is being treated fairly or he/she just does not want to give the state evidence to prove the DUI case in court.  In any case, as a practical matter, the implied consent law says that if the police officer has probable cause to believe a person is guilty of DUI, the police officer can request a breathalyzer test.  If the suspect refuses, the suspect is then subject to certain penalties.  A refusal may result in a longer driver’s license suspension.  A second refusal when there has been a previous refusal during a prior DUI case could result in a new misdemeanor charge.  For the instant case, if a person refuses the breathalyzer, the state will try to use that refusal against the defendant in the DUI case if it goes to trial.  The state will argue to the jury that the defendant refused the breathalyzer test because the defendant was drunk and knew he/she would fail it.  Of course, there are many reasons why a defendant would refuse a breathalyzer test, and the criminal defense attorney can make those counterarguments at a DUI trial.  Ultimately, it would be up to a jury to decide, if the DUI case goes to trial.

Procedurally, in Jacksonville, Florida, the police normally do not offer the breathalyzer test until after the suspect has been arrested for DUI and taken to the jail.  That is one reason why people decide not to submit to a breathalyzer test.  The person is already arrested for DUI at that point, and no one gets “unarrested” after a good breathalyzer reading.  But, after the suspect is taken to the jail and brought to the breathalyzer room in the jail, if he/she refuses to submit to the breathalyzer, the state will try to use that refusal against the suspect in court.

The case we wrote about in our previous post was a DUI manslaughter case near Jacksonville, Florida that involved some interesting legal issues.  A crash occurred at about 1:00 a.m. involving two vehicles.  The victim’s vehicle was forced off of the road into a canal.  The defendant initially fled the scene of the crash, but he did return about an hour later.  However, he never checked on the status of the victim.  There were issues surrounding the blood draw and whether the state could force a person to give blood for alcohol testing without consent and without a search warrant.

Another interesting issue was discussed in this DUI case.  DUI manslaughter is obviously a serious charge.  It is a second degree felony in Florida, which means a person can get sentenced to up to 15 years in prison if convicted.  We have heard of judges giving those sentences, or close to it, for the more egregious DUI manslaughter cases.  A DUI manslaughter can become even more serious if the suspect does not render aid to the victim after the crash.  In that case, the DUI manslaughter charge goes from a second degree felony to a first degree felony, which is punishable by up to 30 years in prison.

It is not clear what exactly the term “render aid” entails.  If the suspect has no medical training, there is only so much he/she can do to help an injured victim and there is only so much that person should try to do in order to not make things worse.  At a minimum, we can assume rendering aid means staying at the scene, checking on the victim and calling for an ambulance as soon as possible.  If the victim has an obvious emergency that can be handled by the suspect, the suspect probably needs to try and alleviate that problem.

When the police want to search a person’s property, or search a person, they normally need consent from that person or a search warrant signed by a judge.  However, that general rule does have exceptions.  In most DUI cases, the police officer will request that the subject submit to a non-invasive breathalyzer test to determine the blood alcohol level.  Other times, the police officer may request a blood draw.  The police cannot request a blood draw in just any DUI case.  There are rules that limit when the police can request blood for alcohol testing in DUI cases.  And when police request blood in a DUI case and the suspect refuses, the police normally cannot force a blood draw without a search warrant.

As stated, there are exceptions to this rule, and one that applies at times in DUI cases is the exigent circumstances exception.  Exigent circumstances under the law generally means there is a risk that the evidence in a DUI case (the alcohol in the suspect’s blood) will be lost if the evidence is not obtained in a timely manner.  This can be particularly relevant in a DUI case as the alcohol in a person’s body dissipates as the body’s metabolism takes effect.

The fact that alcohol dissipates in a person’s body is not a sufficient reason, by itself, to force a blood draw without a search warrant after a suspect refuses the blood draw.  Other factors must be present.

Most DUI cases result from a police officer alleging that he/she observed the driver commit some traffic violation after which a traffic stop is conducted and a DUI investigation follows.  If the police officer believes the driver is impaired from alcohol, the officer will arrest the driver and take him/her to jail.  Only after the driver is booked into the jail is he/she asked to blow in the breathalyzer to try to determine his/her blood alcohol content.

Therefore, in most DUI cases, the police request that the driver submits to a breath test to try to find out the blood alcohol content.  There are, however, other tests.  Drawing blood and sending it to the crime lab is another way to try and determine a DUI suspect’s blood alcohol content.  However, the police are not always allowed to request a blood to test alcohol content since that test is obviously more invasive than a breathalyzer test.  A DUI suspect can always ask the police officer for an independent blood alcohol test, and the police have to accommodate the DUI suspect if it can reasonably be done.  But, the police can only seek a blood test in certain circumstances.

One situation where a blood test is fairly common is when a DUI case involves a serious accident.  After a serious accident, if the police officer believes a driver is drunk driving or impaired from alcohol, the police officer will want to try to find out the driver’s blood alcohol content.  It may not be feasible to explain a person’s rights and administer the breathalyzer in some of these cases.  For instance, if the driver is seriously injured and has to go to the hospital, it would not be possible to take the driver to jail and perform the breathalyzer test.  In these cases, the police officer can request a blood draw to send the sample to the lab for testing later.

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