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.
As mentioned, the police officer did also put the other standard observations in his report to try to support impairment, but fortunately for the defendant, the encounter with the police officer was video recorded and the court noted that the police officer’s observations were not supported by the video evidence. This case is yet another example of why it is dangerous to cooperate with a police officer during a DUI investigation that is not being recorded. The police officer is likely to make a lot of assumptions and observations about impairment (all DUI reports have the same language referring to the officer’s “observations”), but without a video recording of the encounter, it is the defendant’s word against the officer’s. Even with a video recording, the video will not always capture everything to be able to compare it to the officer’s observations and testimony.