Articles Posted in DUI

A man in Ohio was arrested for driving while intoxicated (DWI, but in Florida referred to as driving under the influence of alcohol, or DUI) for driving a bar stool that was rigged with wheels and a lawn mower engine, according to an article on NYPost.com. The police responded to a call that the driver wrecked the bar stool and was injured. When they arrived, the police noted that the driver was intoxicated from alcohol. Apparently, the defendant made the mistake of telling the police officer that he had chugged 15 beers prior to driving.

This is obviously a unique example of a DUI arrest, but it does illustrate the point of what can be considered a “vehicle” under the Florida DUI laws. The Florida DUI statute says that it is a crime to drive or be in actual physical control of a vehicle: 1) while being under the influence of alcohol or a chemical substance to the extent that one’s normal faculties are impaired, or 2) with a blood alcohol level of 0.08 or more. The definition of a “vehicle” under the Florida DUI laws is not often an issue in a DUI case, but it does come up occasionally. A vehicle is defined as any device by which a person or property may be transported upon a highway, except devices that exclusively use rails or tracks. Under this broad definition, it would seem that a rigged, motorized device that can move a person on the road would qualify as a vehicle for the purposes of the DUI laws in Florida.

A man who was convicted of driving while intoxicated/DWI in New York (which is called driving under the influence, or DUI, in Florida) was ordered to have an ignition interlock device placed on his vehicle as part of his sentence. The ignition interlock device is a mechanism that requires the driver to blow into the device before the car will start. If the driver’s breach alcohol content is over 0.05 (0.08 is the legal limit under the DUI laws in Florida), the car will not start. Apparently, the convicted DWI driver was able to rent a car without the ignition interlock device and then crashed it into a utility pole, according to an article on Foxnews.com.

In Florida, the DUI laws require a person convicted of DUI to have the ignition interlock device installed into any car he/she may drive in certain circumstances. For a first DUI in Florida it is up to the judge’s discretion to order the ignition interlock device, however if a person blows a 0.15 or higher or has a minor in the car, there is a mandatory 6 month ignition interlock device period. Upon a second DUI conviction, a minimum of one year with the device is required, and for a third DUI conviction, the minimum is two years. The device costs about $70/month and must be paid for by the driver.

In Florida, if you have been convicted of DUI and are permitted to drive only with the ignition interlock device, a restricted license will be issued with a “P” on it which tells a police officer, or rental car agency, that the ignition interlock device is required. Therefore, if a person has been convicted of DUI in Florida and must drive only with the ignition interlock device, a police officer will likely know by the nature of the restricted license. If that person gets caught driving a vehicle without the ignition interlock device, an arrest for violation of probation and a trip before the sentencing judge is likely.

Donte Stallworth, who plays wide receiver for the Cleveland Browns, was involved in an accident last week that resulted in the death of a pedestrian in Miami Beach, Florida. According to articles written after the crash, Stallworth submitted to a field sobriety test and also had his blood drawn to determine his blood alcohol content (BAC) after the crash. The toxicology reports showing his BAC have not been completed, however there are reports that Stallworth’s BAC was 0.14 around the time of the accident, according to an article on Miamiherald.com.

In Florida, the legal limit for DUI (driving under the influence of alcohol) is 0.08. If Stallworth’s BAC was 0.14, he was well over the limit. This does not automatically mean that he was, or will be found, guilty of DUI, but it would be pretty damaging evidence against him in his criminal case. When a driver is stopped by police with a BAC of 0.08 or more, he/she will likely be charged with DUI, which is a misdemeanor for a first DUI. If a person is driving with a BAC of 0.08 or more and causes an accident resulting the death of another person, it can be a second degree felony which carries a maximum penalty of 15 years in prison, or a first degree felony which carries a maximum of 30 years in prison if the driver leaves the scene of the accident without providing the necessary contact and insurance information.

Based upon this preliminary report, Stallworth is facing some serious legal issues. A charge of DUI manslaughter is likely. However, before this case is ultimately resolved, Stallworth’s defense attorney will certainly raise many issues regarding the accident, how and why it occurred, whether and to what extent Stallworth was impaired by alcohol and the validity of the state’s evidence to support that allegation.

Preston Parker, who plays wide receiver for Florida State, was arrested for DUI after local police allegedly found him asleep in the driver’s seat in the early morning hours. Parker’s vehicle was parked, but the key was in the ignition, the engine was running and his foot was on the brake pedal according to the article on ESPN.com. Parker submitted to the field sobriety exercises requested by the police officer, was arrested and then submitted to a test of his blood alcohol content (BAC).

We discuss this arrest to highlight one issue in DUI criminal case law of which some people are not aware. Someone may read this article and wonder how a person can be arrested and charged with driving under the influence of alcohol or drugs (commonly referred to as DUI or DWI) when he was not even driving.

Unfortunately, this is not just a simple matter of Parker’s criminal defense lawyer pointing out that Parker was not driving when the police saw him so his case must be dismissed. In Florida, the crime of DUI can be committed when a person is driving a vehicle or in actual physical control of a vehicle while under the influence of alcohol or drugs to the extent his/her normal faculties are impaired. While this issue will surely be contested by Parker’s criminal lawyer in his DUI case, under Florida law, a person who has the keys in the ignition with the engine running could be considered in actual physical control.

If a Jacksonville Sheriff’s Office officer pulls a driver over and suspects that the driver is driving under the influence of alcohol or drugs (commonly referred to as DUI or DWI), the officer will ask the driver to submit to a state administered blood or breath alcohol test to measure the concentration of alcohol in the driver’s system. For suspects who do not trust the state administered blood or breath test or who otherwise would like an independent test, Florida law provides that a driver has a right to have such an independent test performed by a hospital, nurse, doctor or laboratory of his/her choosing.

However, keep in mind that the Jacksonville police officer who is investigating a driver for the crime of DUI does not have to, and likely will not, inform the driver that he/she has a right to an independent test. It is up to the driver to clearly and unequivocally make the request for the independent blood test and pay for it. The police officer does, however, have to allow a suspect the opportunity to make the arrangements for the test by providing telephone access. It is unclear whether the police officer has to provide transportation, however, the police officer may not interfere with the suspect’s ability to take the test and that may require transportation.

Consider a typical DUI traffic stop that often occurs in Jacksonville, Florida. A police officer will see a person commit a driving infraction such as speeding or running a stop sign late on a Saturday night. The police officer pulls the driver over and immediately suspects the driver of being under the influence of alcohol or drugs, perhaps because of the age of the driver, the fact that it is late on a weekend, the fact that there are certain bars or restaurants down the road or any other factors that may bias the officer. From that point on, the police encounter and the decision as to whether or not to arrest the driver for DUI is very subjective. In other words, whether a DUI arrest is made is not based on concrete, objective factors that can later be confirmed in court; rather, the decision to arrest for DUI will often be based on the perceptions, observations, conclusions and biases of the police officer. Just about every police officer that has made a DUI arrest since the beginning of time will report that the suspect had bloodshot and watery eyes, emitted a strong odor of alcohol, had slurred or mumbled speech and failed the field sobriety tests if the driver submitted to them. However, those conclusions are all very subjective. How bloodshot and watery were the driver’s eyes compared to what they normally look like? What if the driver was in a smoky bar or staring at a computer screen all day? How strong is a “strong odor of alcohol”? What is slurred speech compared to how a person normally speaks? Over the entire time period of the police encounter, how often must the driver slur his/her speech for it to be considered significant? Is the speech slurred due to alcohol or because the person is nervous? How the officer interprets these questions is very subjective.

The word “bias” is not used negatively here but as a natural and normal psychological phenomenon- a cognitive bias, and it is a significant factor. The human brain is wired to see patterns and draw conclusions subconsciously. While we would hope that a police officer would come to a conclusion only after assessing all of the relevant data, humans have a psychological tendency to draw the conclusion and fit the data to conform to that conclusion. The human brain is also wired to avoid conflict. In other words, if we believe something to be true, i.e. we see something we believe conforms to a pattern we assume exists, we challenge ideas or perceptions that are inconsistent with our belief and automatically accept ideas that are consistent with our belief. The human brain is much happier when ideas and perceptions are consistent.

At a DUI stop, if a police officer believes the driver is under the influence of alcohol, i.e. that is the idea he/she perceives that is consistent with the pattern he/she accepts, the officer may interpret the subsequent evidence to conform to that belief. As a result, these subjective factors like bloodshot and watery eyes, slurred speech, an odor of alcohol and performance on field sobriety tests may be interpreted to be consistent with the idea of a drunk driver rather than what the facts actually illustrate.

If you are stopped by police in Jacksonville, Florida, or anywhere else for that matter, and are suspected of driving under the influence of alcohol or drugs, here is a good example of how you would not want to handle that police encounter. Charles Barkley is famous mainly for two things- he was one of the best professional basketball players in the 1980’s and 1990’s and he was, and continues to be, one of the most outspoken athletes and former athletes. The former characteristic can, at times, get people out of trouble, but the latter characteristic is rarely helpful during a police encounter, particularly when a police officer suspects a person of driving under the influence of alcohol (referred to as a DUI or DWI).

In the early morning hours on New Year’s Eve, Barkley was stopped after a police officer reportedly saw him roll through a stop sign. When the police officer activated his emergency lights, Barkley stopped in the road rather than pulling over to the side of the road. The police officer approached Barkley and said he detected an odor of alcohol and observed that Barkley’s eyes were bloodshot and watery. The police officer asked Barkley if he had been drinking, and Barkley said, “A couple.” The police officer asked Barkley if he would submit to field sobriety tests, and Barkley agreed. The police officer determined that Barkley failed those tests. Barkley also reportedly told the officer that he was in a hurry to meet a girl for oral sex. After the discussion with Barkley and the field sobriety tests, the police officer arrested Barkley for DUI.

Barkley messed up this police DUI encounter in several ways. Keep in mind that everything Barkley did and said that the police officer or the prosecutor believes is evidence that he was impaired by alcohol will be used against Barkley in court. When the police officer engaged his emergency lights, Barkley should have pulled over off of the road rather than in the road. People should know that it is unsafe to stop in the road, and the police and prosecutor will say that his failure to pull over off of the road is a sign of poor judgment, which is a factor in determining if a person is impaired.

Jacksonville Sheriff’s Office officers are out in force on holidays looking to stop drivers whom they suspect are driving under the influence of alcohol or drugs (aka DUI, DWI or drunk driving). This is particularly true in Jacksonville and Jacksonville Beach on New Year’s Eve. Some of the more common areas where DUI police officers are prevalent are J. Turner Butler Boulevard (JTB), Beach Boulevard and Atlantic Boulevard. Police often look for drivers whom they believe are indicating signs of impairment, such as swerving, aggressive driving, excessive speeding or driving very slowly or driving in a manner that causes a motor vehicle accident.

If you are pulled over on New Year’s Eve in Jacksonville, Florida (or any other time or place), keep in mind that you have rights. The officer may ask you to submit to a series of field sobriety tests. You do not have to submit to those tests. The officer may ask you questions about what you have been doing prior to the police stop and whether you have been drinking. You can politely request your lawyer rather than provide that potentially incriminating information to the police officer. If you do get stopped and arrested for DUI, it is important to contact a lawyer as soon as possible so your rights can be protected.