Articles Posted in DUI

In most DUI cases, when a police officer claims to observe signs of impairment of a driver, the police officer will request the suspect to take a breathalyzer test to determine if the driver is driving under the influence of alcohol (i.e. DUI). Florida law allows a police officer to request that a driver take a breathalyzer test if the police officer makes a valid arrest for DUI based on his/her observations that the driver is driving while impaired. The driver can refuse to submit to the breathalyzer. If the driver refuses to take the breathalyzer test, the state can use the breathalyzer refusal against the driver at the DUI trial.

If the driver submits to the breathalyzer and the police officer is not satisfied with the breathalyzer results, the police officer cannot then request a urine or blood test without specific evidence that the driver is impaired by drugs rather than alcohol. A breathalyzer is supposed to test the person’s blood alcohol content. The breathalyzer cannot determine if a driver has used drugs. A urine or blood test can test for the presence of alcohol and/or drugs in a person’s system. However, if the police officer requests the breathalyzer test, the officer cannot then request the urine or blood test to look for drugs just because he/she did not like the breathalyzer results.

In a recent DUI case south of Jacksonville, Florida, the police officer saw the suspect stopped at a traffic light. The light turned green and red and then green again, but the suspect never drove forward. The police officer approached the vehicle and saw the driver laying down in the driver’s seat. The officer said he observed signs of impairment and conducted field sobriety tests. The officer said the suspect failed the field sobriety tests and arrested the suspect for DUI. At the police department, the suspect submitted to two breathalyzer tests. Both breathalyzer tests yielded results under the legal limit of 0.08. At that point, the police officer claimed that he thought the suspect might be under the influence of drugs and requested the suspect submit to a urine test. The suspect refused. The state ultimately tried to use the suspect’s refusal of the urine test against the suspect at his DUI trial.

In Florida, when a person obtains a driver’s license, he/she consents to submit to a breathalyzer test when a police officer has probable cause to believe the person is driving while impaired by alcohol and makes a DUI arrest. If the person refuses to submit to a breathalyzer test during a DUI arrest, that person is subjected to a longer driver’s license suspension and the evidence of the breathalyzer refusal can be used against him/or in the DUI case. Additionally, a second breathalyzer refusal during a subsequent DUI arrest in Florida is a misdemeanor crime.

When a person refuses the breathalyzer test and goes on to have a DUI trial, the state will always bring out the fact of the refusal and argue to the jury that the defendant refused the breathalyzer because he/she knew it would show that he/she was impaired by alcohol. Of course, the criminal defense lawyer and the defendant can refute that assumption with their own arguments as to why the defendant refused the breathalyzer.

However, in a recent DUI case west of Jacksonville, Florida, the state attempted to do something quite different. In this DUI case, the defendant refused to submit to the breathalyzer. Apparently, the defendant had a prior DUI arrest and conviction many years before where he actually submitted to the breathalyzer test. At the trial, the defendant was asked by the prosecutor why he refused the breathalyzer test, and the defendant said that he did not trust the breathalyzer test. The state then brought out evidence of the defendant’s prior DUI case where he did submit to the test.

Most people understand that the police in Florida cannot seize a person without specific facts indicating the person is, was or is about to be involved in criminal activity. However, what is considered a seizure of a person is not always clear. It does not just mean an arrest. It can also mean commanding a person to do something he/she was not intending to do. For instance, if a police officer tells a person to get out of his/her car or to move his/her car, that can be a seizure that is not proper without a legal basis for making the request.

In a recent DUI (driving under the influence of alcohol or drugs) and possession of cocaine case south of Jacksonville, Florida, the defendant was trying to exit a parking garage in his vehicle. A nearby police officer saw that he was having trouble putting the token into the machine to raise the gate. There were vehicles behind the defendant who were waiting to get out of the parking garage. The police officer told the defendant to move his vehicle away from the gate and into a parking spot so the other vehicles could leave. The suspect did move his vehicle and then got out an started stumbling and leaning on his car for support. The officer then approached the defendant, observed that he seemed to be impaired and initiated a DUI investigation. The police officer arrested him for DUI and found cocaine in his pocket.

The criminal defense lawyer filed a motion to suppress the evidence relating to the DUI investigation and the cocaine found in the defendant’s pocket. He argued that a police officer cannot command the defendant to move his vehicle without specific evidence that he is committing a crime. By telling the defendant to drive away from the gate to a parking spot, the police officer effectively seized the defendant without sufficient evidence that he was involved in criminal activity.

As criminal defense attorneys in the Jacksonville, Florida area, we see a lot of different DUI cases. One issue that arises from time to time is a situation where the police arrest a person alleging that he/she is driving under the influence of alcohol but there is also evidence of a drug on the person or in the vehicle. For instance, in a recent case, a suspect was stopped for DUI based on alleged alcohol impairment. When the suspect was arrested, the police found a marijuana pipe and other marijuana paraphernalia in the vehicle as well. At the DUI trial, the criminal defense lawyer tried to exclude the evidence of the marijuana paraphernalia arguing that it was irrelevant and prejudicial in a case that was about alleged alcohol impairment.

In other cases, we have seen where the suspect has the actual drug, whether it be marijuana, cocaine, Oxycontin or something else, on his person. While possession of one of those drugs would result in an additional charge, we would argue that that drug charge should be handled separately from the DUI case because evidence of the drugs would be prejudicial and irrelevant to whether the suspect was impaired by alcohol at the time of the DUI arrest.

In Florida DUI cases, the law appears to allow evidence of the drugs or drug paraphernalia in certain circumstances: 1) there is significant evidence that the suspect was impaired, 2) the suspect has evidence indicating he/she recently used the drug(s), 3) there is a lack of evidence indicating the suspect is impaired from any other source and 4) the evidence does not indicate the suspect was not impaired from the drug for which the evidence exists.

In DUI cases in Florida, the police officer who suspects the driver of driving while intoxicated will normally request that the driver submit to a breath alcohol test, or breathalyzer, which is the common test to determine if a person is driving over the legal limit. Blood and urine tests also exist, but police typically request the breath test due to the fact that it is easier to administer. In Florida, when a person gets a driver’s license and accepts the privilege to drive, he/she agrees to submit to an alcohol test after a lawful arrest for DUI where the police officer had probable cause to make the DUI arrest. Normally, the driver can refuse the breath, blood or urine test- the police officer will not force the the driver to submit to the breathalyzer, blood or urine test. However, if the driver refuses to submit to the breath, blood or urine test after a lawful arrest for DUI, the person is subject to a longer driver’s license suspension and being charged with a misdemeanor crime for a subsequent DUI test refusal. The refusal can also be used against the driver in court during the DUI criminal case.

However, police and prosecutors in some counties in Florida are fighting back against people who refuse the breathalyzer or other alcohol test. They are having a judge available in certain situations, such as when police set up checkpoints or during times when police expect a lot of drunk drivers, who will quickly issue search warrants when a driver arrested for DUI refuses the breath test. In this situation, after the driver refuses the breathalyzer, the police officer will tell the judge why he/she thinks the driver has committed a DUI and request the judge to issue a search warrant to obtain the driver’s blood to be tested for alcohol content. In this situation, the police would not force the driver to submit to the breath alcohol test, but it would force the driver to submit to a blood alcohol test.

Ths method of getting a search warrant on the fly and forcibly taking one’s blood to test it for alcohol obviously raises several concerns. It is likely this will be challenged through the appellate courts in Florida and other states to determine if the strategy and the method are legal.

In Florida, when the police officer is conducting a DUI investigation, that officer is going to request that the driver submits to a field sobriety examination at some point. This is a very subjective and voluntary test which is supposed to be designed to see if the driver is intoxicated but practically is often just used as evidence to bolster the DUI case for the police and the state. People in Florida need to understand their rights and that they have an absolute right to refuse to submit to the field sobriety exam.

If a driver refuses a police officer’s request to submit to a field sobriety exam, that alone does not affect his/her driving privileges. The risk of a refusal is that the refusal can be used against the driver in his/her DUI trial where the prosecutor will argue the driver refused the field sobriety exam because the driver knew he/she was drunk and would fail. Of course, the driver will likely have perfectly good reasons for refusing the field sobriety exam that his/her criminal defense lawyer can assert to refute the prosecutor’s argument.

However, in some DUI cases, the driver’s refusal to submit to a field sobriety exam cannot be used against the driver in the DUI trial. The refusal cannot be used against the driver in the DUI trial when the refusal was not a true refusal. What does this mean? First the police officer must give the driver the proper warnings when the police officer requests that the driver take the field sobriety tests. The police officer must tell the driver that a refusal to take the field sobriety exam will result in adverse consequences for the driver. In other words, the refusal can be considered by the police officer in his/her decision to arrest the driver for DUI and a later DUI trial. Second, the refusal has to be a clear refusal. Third, if the driver initially refuses but then changes his/her mind, the police officer must allow the driver to take the field sobriety exam if it is still convenient to do so and the tests results would not be affected by the driver’s changed mind. Therefore, if the driver refuses at the DUI stop and changes his/her mind after he/she has already been booked into the jail, that is probably too late and the refusal can likely be used against the driver at the DUI trial. However, if the driver initially refuses but changes his/her mind a few minutes later while they are still at the scene of the stop, the police officer would likely have to allow the driver to take the field sobriety exam. If the police officer does not, the driver’s criminal defense lawyer would likely be successful in making sure the driver’s initial refusal to take the field sobriety exam cannot be used as evidence by the state against the driver at the DUI trial.

When police in Jacksonville and other cities in Florida stop a driver and suspect he/she is driving under the influence of alcohol (DUI), the police officer will ask the driver if he/she will submit to field sobriety tests, which are very subjective exercises that are supposed to be designed to determine if the driver is impaired by alcohol. A driver has an unconditional right to refuse these field sobriety tests. When deciding whether to submit to a request to a police officer’s request to take field sobriety tests, the driver should consider several things, including: 1) the test is completely subjective and the judge is the police officer who already thinks the driver is intoxicated, 2) the field sobriety tests can be very difficult for anyone as they test balance and coordination in circumstances a normal person is not used to in a situation where most people would be nervous and 3) if the police officer does not bother to videotape the field sobriety tests (and they often do not), the driver does not have much of a way to refute the police officer’s subjective opinion that the driver failed.

However, there can be a downside to refusing to take the field sobriety tests. That downside really is not that the driver is more likely to get arrested. If the police officer thinks the driver is drunk and is asking for the field sobriety tests, the police officer is probably going to make the arrest no matter what happens going forward. The downside is that after the driver gets arrested and charged with DUI, the fact that the driver refused the field sobriety tests can be used against the driver at the DUI trial, and the prosecutor will obviously argue that the driver refused because he/she knew he/she would fail due to his/her alcohol level. Of course, the driver may have perfectly good reasons for refusing the field sobriety tests, i.e. an injury that would affect balance and coordination, too nervous, the encounter was not being videotaped, the fact that the police officer already made up his/her mind that the driver was drunk, etc., and the criminal defense lawyer would have an opportunity to argue those defenses at the DUI trial as well.