Articles Posted in DUI

Jacksonville, Florida police have indicated that they intend to make more DUI (also referred to as drunk driving or driving under the influence) arrests this weekend as it falls on the New Year’s holiday. People in the Jacksonville, Florida area can expect Jacksonville Sheriff’s Office and Florida Highway Patrol officers to be on the lookout for people they suspect are driving under the influence of alcohol or drugs. They are also setting up DUI checkpoints in the Jacksonville area.

Of course, for anyone who plans to drink this weekend, having a designated driver or taking a cab is always the best option. However, the other side of the coin in these situations where the police are making a concerted effort to make DUI arrests is that police often tend to draw conclusions first and work on the evidence later when they believe someone is DUI. A DUI arrest is very subjective. A DUI arrest is often the result of a police officer who is already looking for DUI suspects deciding that a person is impaired from alcohol and then making very subjective observations that are consistent with that foregone conclusion. These same observations that police officers write in their reports over and over again include: odor of alcohol, bloodshot and glassy eyes, slurred speech and swaying. Of course, all of those are subjective conclusions, and none of them prove that a person is impaired. From there, the police officer will likely ask the DUI suspect to participate in the field sobriety exercises. These are very difficult coordination and balance exercises administered under difficult conditions when the suspect is often very nervous. Whether a person passes these exercises is completely based on the subjective opinion of the police officer who obviously already thinks the suspect is impaired or he/she would not have asked the DUI suspect to take the field sobriety tests in the first place. Under those circumstances, it may not make sense to agree to take the field sobriety tests, which are completely voluntary.

The message from the Jacksonville police is a good one- if you are going to drink, a designated driver or taxi is the best option. However, we have handled a lot of DUI’s and see how subjective the DUI arrest can be on a normal weekend. When the police make a statement that they are focusing on DUI’s during a particular weekend, the risk of more questionable DUI arrests is greater.

In a recent DUI case south of Jacksonville, Florida, the defendant was the subject of a citizen’s arrest until the police officer arrived and formally arrested the defendant for DUI. The citizen was sitting on a bench when the defendant pulled up, stopped and got out of her vehicle. The citizen noted the defendant was clearly disoriented and appeared intoxicated. The citizen then took the keys from the defendant to prevent her from driving further. This was a seizure under the Florida search and seizure laws. Once she retained the defendant’s keys, the citizen called the police. The police officer arrived, spoke to the citizen about the defendant’s apparent intoxication and began a DUI investigation. After determining the defendant was drunk driving, the police officer arrested her for DUI. The defendant ultimately took a breathalyzer test which showed a very high blood alcohol content level.

The defendant’s criminal defense lawyer filed a motion to suppress the evidence of the breathalyzer test and the police officer’s observations of her signs of impairment. The criminal defense attorney argued that the citizen’s arrest was improper and all evidence obtained thereafter was inadmissible. The court disagreed and found that this was a proper citizen’s arrest. Because the citizen observed the defendant show signs of impairment and acted properly in taking the keys from her to prevent her from driving, the citizen’s arrest was proper. The defendant was not unlawfully seized, and the police were permitted to conduct their DUI investigation and make a DUI arrest.

One often overlooked element of a DUI (“driving under the influence of alcohol or drugs”) charge is the requirement that the state must prove beyond a reasonable doubt that the defendant was either driving the vehicle or in actual physical control of the vehicle while impaired from alcohol or drugs. Most of the time, this is not an issue as most DUI cases result from a traffic stop where the police officer observes the driver allegedly commit some traffic violation. However, in DUI cases involving accidents, this can be a significant issue that can result in DUI charges being dropped.

Unlike with traffic stops, accidents often occur without observation by a police officer, and possibly without any witnesses at all. In accidents with other drivers, sometimes the other driver does not actually see who was driving the vehicle that hit his/her vehicle. In single vehicle accidents, the driver is usually out of the vehicle by the time the police officer arrives. In these cases, it may be fairly obvious who was driving. However, assumptions are not sufficient to prove the defendant was driving beyond a reasonable doubt. Of course, once the police officer arrives, he/she will take a statement from the driver who will likely disclose the fact that he/she was in fact driving the vehicle. However, there is a good chance this admission by the driver is not admissible in a DUI trial.

In Florida, there is something called the accident report privilege. This privilege requires people involved in an accident to tell the police officer what happened in the accident. Because there is a requirement to talk to police, any statements a driver makes about the crash during the accident investigation cannot be used against him/her in a criminal case. Therefore, if the only evidence the police have that the DUI suspect was driving prior to the accident came from the driver’s own statements while the police officer was investigating the accident, that statement cannot be used against the DUI suspect and the DUI charges should be dismissed.

With DUI cases in Florida, a lot of people assume that the defendant is arrested only after he/she has submitted to a breathalyzer test that showed the defendant was drunk driving or impaired by alcohol. Otherwise, people understand that an arrest before a high breathalyzer reading is likely to be based on the completely subjective assumptions of the police officer who already assumes the driver is drunk when he/she is formulating his/her opinions.

But that is not how it works. Breathalyzer tests are administered only after the defendant is arrested based on the subjective conclusions of the police officer. With many DUI arrests, it is a case of, arrest first (based on assumptions) and get the evidence later.

In a recent DUI case south of Jacksonville, Florida, the police officer observed a driver swerve out of his lane. The police officer ran a check of the driver’s tag and learned that he had an outstanding warrant for driving with a suspended license. The police officer stopped the driver, arrested him for driving with a suspended license and took him to the police station. Only after the driver arrived at the police station did the officer indicate he noticed an odor of alcohol, slurred speech, bloodshot and glassy eyes and all the standard things that go into every DUI police report. The police officer asked the driver to take a breathalyzer or breath alcohol test. The driver refused. At that point, the police officer arrested the driver for DUI.

In most DUI cases in Florida, when the polcie officer makes observations indicating the driver is impaired by alcohol, the police officer will ask the driver to submit to a breathalyzer test which tests a person’s blood alcohol level after the driver blows into the breathalyzer device. In some circumstances, the breathalyzer test is not practical, and the police officer investigating a DUI can request the driver submit to a blood test to test the driver’s blood alcohol level. This normally occurs after the driver is involved in an accident and suffers injuries making the breath test impracticable. The blood draw for the blood alcohol test is performed at the hospital where the driver has been taken to treat the injuries he/she suffered in the accident.

However, just because a person is in what appears to be a serious accident does not automatically allow the police officer investigating the driver for DUI to take the driver’s blood and have it tested for alcohol content. In a recent DUI case south of Jacksonville, Florida, the defendant lost control of her vehicle and flipped it over on the highway. To the responding police officer, it appeared to be a serious accident where a driver would normally be injured. When the polcie officer arrived, the driver was being loaded into the ambulance to be taken to the closest hospital emergency room. The police officer followed the driver and the ambulance to the hospital and made contact with the driver. The police officer indicated that the driver smelled of alcohol, had slurred speech and exhibited other signs of impairment from alcohol. However, the driver made it clear that she was not injured, had refused medical treatment and did not want to go to the hospital in the first place. At the hospital, she did not receive any medical treatment.

According to the police officer, the breathalyzer test could not be done at the hospital so he asked the driver to submit to a blood test to test her blood alcohol level. The driver agreed and submitted to the blood test. The blood test came back with a blood alcohol level above 0.08, the legal limit.

In a recent DUI case south of Jacksonville, Florida, a police officer stopped the defendant for driving out of control and in an abnormal driving pattern. More specifically, the police officer testified that the defendant was driving back and forth in his lane and striking the lane markers. At some point, after driving over to the divided white lines, the defendant abruptly swerved back towards the middle of the lane. However, the driver never drove over into the adjacent lane. The police officer concluded that the driver was impaired and pulled him over allegedly to see if he was fine to continue driving. After the traffic stop, the police officer conducted a DUI investigation, had the driver perform field sobriety tests and arrested him for DUI.

The criminal defense lawyer filed a motion to suppress evidence of the police officer’s observations of impairment and the results of the police officer’s field sobriety examination. The criminal defense attorney argued that there was no actual traffic violation so the police officer did not have a legal basis to pull over the defendant.

Ordinarily, a police officer may only conduct a traffic stop of a defendant, whether to write a traffic ticket or investigate for a DUI, if the police officer observes the driver commit a traffic violation. However, there are exceptions to this general rule. One exception is referred to as the community caretaker doctrine in Florida. This says that a police officer may stop a vehicle without reasonable suspicion of criminal activity if the officer believes it is necessary to protect public safety. A police officer can stop a driver if he/she observes abnormal driving if there is reason to believe the driver may be ill, tired or impaired and a risk to others on the road. These traffic stops are allegedly unrelated to a criminal investigation, but they can turn into a DUI or other criminal investigation if the police officer observes signs of impairment from alcohol and/or drugs or other evidence of criminal activity.

Many people believe that a person can only get arrested for driving under the influence of alcohol or drugs, i.e. DUI, if he/she is actually driving the vehicle while impaired. However, this is not the case. In Florida, the DUI laws cover a person operating the vehicle or “in actual physical control” of the vehicle. This latter phrase covers incidents where a person is in control of the vehicle and has the capability of driving it, even if he/she is not actually driving it at the time. One common example is where a police officer approaches a person who is sitting in the front seat of the vehicle with the keys in the ignition. If the person is drunk or otherwise impaired by alcohol or drugs, the police officer can arrest him/her for DUI. This situation often arises where a person parks his/her vehicle and falls asleep or passes out in the front seat with the keys in the ignition.

However, in a recent DUI case south of Jacksonville, Florida, the police received a call of a person passed out in his vehicle. When the police officer arrived, he saw the person passed out in the back seat of the vehicle. The keys were in the front seat. The police officer determined that the person was drunk and arrested him for DUI. The DUI charge was ultimately thrown out. Because the defendant was passed out in the back seat, there was no evidence that he was capable of operating the vehicle even though the keys were inside the vehicle. The state could not prove that the defendant was in actual physical control of the vehicle so the DUI charges could not stand.

In Florida, where the police officer has probable cause that a person is drunk driving or driving under the influence of alcohol (i.e. DUI), the police officer has a right to ask the driver to submit to a test to measure the alcohol content of a person’s blood. In Florida, driving with a blood alcohol content of 0.08 or more is illegal. Most often, the police officer will ask the DUI suspect to take a breath test, or breathalyzer, to determine the person’s alcohol level. If the suspect refuses the breath test/breathalyzer, the DMV may increase the driver’s license suspension and the state will attempt to use the driver’s refusal to submit to the breathalyzer as evidence against the suspect at the DUI trial, i.e. the state will argue the DUI suspect refused the breath test because he/she knew it show a high reading.

In some cases, the police officer investigating the DUI will seek to get a blood test to determine the driver’s blood alcohol level as opposed to a breath test. The state can seek a blood test of the DUI suspect where it is not practical to administer the breathalyzer. For instance, if the DUI suspect is involved in an accident and is injured to the extent that he has to go to the hospital, a breath test may not be possible. In that case, the state is authorized to get a blood test from the DUI suspect. If the DUI suspect is in a position to refuse and does so, the state can use the DUI blood test refusal against the suspect at his DUI trial.

However, if a breathalyzer test is a viable option for the police officer and DUI suspect, the police officer is not permitted to seek a blood test. The DUI suspect can request a blood test, but the police officer is not allowed to substitute the blood test for the breath test at the police officer’s own discretion. If the police officer requests the blood test when the breathalyzer is a viable option and the DUI suspect refuses, the state will not be permitted to use the DUI suspect’s refusal of the blood test at the DUI trial, and the state would have to try and prove its DUI case without mention of any blood or breath test to measure the DUI suspect’s blood alcohol content.