Articles Posted in DUI

In Florida, when a police officer makes a traffic stop and claims he/she observes evidence of impairment from alcohol, that officer will initiate a DUI investigation. This usually starts with questions about where the driver has been, how much the driver has had to drink and other questions about the driver and his/her activities. The driver, of course, is free to request a lawyer and refuse to answer those questions. Next, the police officer will request that the driver submit to field sobriety tests. Again, the driver is free to refuse to submit to those tests. The driver should probably refuse to submit to those tests if he/she has any health/physical issues and/or the police officer does not have a video camera in his/her vehicle that accurately, objectively and completely records the driver’s performance of those tests. Sometimes, even when there is a video camera, it is difficult to observe exactly how the driver performs on some or all of the field sobriety tests. In that case, the driver is at the mercy of the police officer’s subjective opinions as to his/her success. This can be due to the placement of the car in relation to the test location, the lighting and the obscure nature of the tests themselves.

After a DUI arrest, the police officer will ask the driver to submit to a breathalyzer test which tests the driver’s blood alcohol level. The driver can refuse this test, but it is important to note that when a person in Florida agrees to accept a driver’s license, he/she impliedly consents to submit to a breathalyzer test after a valid DUI arrest. If the driver decides to refuse the breathalyzer test, that driver is subjected to a longer driver’s license suspension and could have the refusal used against him/her if the DUI case goes to trial.

However, some people do not necessarily trust the government with their lives and well-being. They might agree to submit to a breathalyzer test, but request an independent blood test that is not provided by the police. In this situation, the driver should politely and clearly request an independent blood test. Under Florida law, a person arrested for DUI whose breath is tested has a right to request an independent blood test. Of course, most people do not drive around with a lab technician who is prepared to test blood for alcohol. Likewise, the police are not likely to let the suspect who is under arrest leave to get a blood alcohol test and return later.

In DUI cases in Florida, many people assume that the police car has a video camera that records the DUI investigation and arrest. The DUI video can be a good thing for a defendant if the defendant looks good on the video, and it shows that the police officer is exaggerating when he/she says the defendant was drunk. On the other hand, the DUI video can be problematic for the defendant if it shows the signs of impairment that the police officer indicated in his/her report and will testify to at the DUI trial.

As prevalent as video is these days, it should not be too much to ask for the police to record these DUI encounters. Because DUI arrests are so subjective (if the police officer thinks you are impaired from alcohol, you are probably getting arrested for DUI), it is important to have a DUI video so a jury can decide for themselves if the defendant was impaired rather than relying on the subjective memory of a police officer about an encounter that occurred months ago. Many police cars in the Jacksonville, Florida area do not have cameras. When we handle DUI cases with no video, we place the blame on the state since they have the burden of proof in DUI cases, and they have the capabilities to put video cameras in their police cars or bring a police car with a video camera to the scene.

In some cases, the police car has a video camera, but it does not record properly, it only records part of the DUI encounter or the video is lost. In a recent DUI case near Jacksonville, Florida, the police officer stopped the defendant and turned on his video camera. He went through the usual DUI investigation and ultimately arrested the defendant for driving under the influence of alcohol.

In Florida, the law establishes what it considers a legal limit for a driver’s blood alcohol content. Most people know that the legal limit in Florida in DUI cases is 0.08. If a person blows a 0.08 or higher on the breathalyzer, that does not necessarily mean he/she will be convicted of DUI, but it is certainly evidence that state can use to try and prove a DUI case in court. How many drinks it takes to get to 0.08 depends on various factors including body weight, metabolism, food intake and other factors.

Most people are also well aware that the drinking age in Florida is 21. The rules in Florida regarding DUI’s are different for a driver under the age of 21. For one example, the legal limit is much lower. In Florida, it is illegal for a person under the age of 21 to drive with a blood alcohol content of 0.02 or higher. It does not take much alcohol to get to a 0.02 blood alcohol content.

Many adults go out to dinner and have a drink or two and drive home assuming they are under the 0.08 legal limit. They certainly may be right. However, for people under 21, that will not help. The legal limit is such that just about any alcohol may subject them to a DUI charge. The idea of course, is that since people under 21 are not legally allowed to drink, they are not given the same leeway when it comes to a DUI charge. For adults over the age of 21, drinking and driving is not illegal as long as the driver is not impaired. For people under 21 years of age, any drinking and driving can easily subject them to a DUI conviction. Since the penalties for DUI convictions get increasingly worse as a person gets more than one, and much more expensive, it is important to avoid DUI’s, particularly for younger drivers.

In a normal DUI case in Florida, where there is no accident with serious injury or death, the police do not request or seek to obtain a blood sample of the defendant to test for alcohol content. The procedure is often different when a DUI case does involve an accident with serious injury or death.

In a DUI manslaughter case near Jacksonville, Florida, the defendant failed to yield and caused a crash that killed the other driver. A police officer responded to the scene and observed that the defendant appeared to be impaired from alcohol. The police officer testified that he smelled an odor of alcohol coming from the defendant and she was belligerent with multiple police officers. As a result, he ordered the defendant to submit a blood sample that was later tested and found to have an alcohol concentration above the legal limit in Florida of 0.08.

The criminal defense lawyer filed a motion to suppress the blood alcohol test results claiming the police officer did not have a right to order a blood sample taken from her and tested without a search warrant. The Florida implied consent law means DUI cases are treated differently when a serious injury or death is involved. In that case, if the police officer has probable cause to believe the person who caused the accident was under the influence of alcohol or drugs, the police officer has a right to order a blood draw and test it for alcohol content. Implied consent means a driver consents to this process when he/she agrees to accept a driver’s license in Florida.

In Florida, most DUI investigations start after a police officer observes the suspect driving erratically or violating a traffic law. However, some DUI cases start fairly innocently after a police officer is just checking to make sure a person is alright. Normally, a police officer needs to have reasonable suspicion that a person is committing a crime or probable cause to believe he violated a traffic law before the police officer can stop a driver. However, in some cases, a police officer can investigate if the circumstances indicate a person may be sick or in some kind of trouble.

In a recent DUI case near Jacksonville, Florida, a police officer observed the defendant driving a vehicle that was coming to a stop on the side of the road because it had four flat tires. The defendant was not breaking the law in any way, but the police officer stopped to see if the defendant needed any assistance. After talking to the driver for a few minutes, the police officer claimed he smelled an odor of alcohol and observed the usual signs of impairment from alcohol that the police officers always put in their DUI arrest reports. The police officer then proceeded into a DUI investigation and ultimately arrested the defendant for DUI.

The criminal defense lawyer challenged the arrest claiming the police officer did not have a legal basis to investigate the defendant for DUI or any other crime. The defense challenge was denied. Even where the police officer has no specific evidence of wrongdoing on the part of a driver, the police officer can approach a driver if it appears that he/she may be in trouble or otherwise needs assistance. If, at that point, it appears that the driver is drunk or is involved in any other criminal activity, the police officer can proceed with a criminal investigation.

In Florida, most DUI arrests occur after the police officer stops the driver for committing a traffic violation and then claims to make observations indicating the driver is impaired from alcohol or drugs. In the majority of those cases, the police officer works in the city or county where the initial stop is made and where the DUI arrest is made. For instance, most people stopped for a traffic violation and arrested for DUI in Jacksonville are stopped and arrested by a member of the Jacksonville Sheriff’s Office (although the Florida Highway Patrol also can make stops as well). In Clay County, it is the Clay County Sheriff’s Office.

Can a police officer make a stop and a DUI arrest outside of his/her jurisdiction in Florida? For instance, can a Jacksonville Beach police officer stop a driver and make a DUI arrest in the city of Jacksonville? It depends. Generally, the answer is no. A police officer is limited to making stops and making arrests in his/her own jurisdiction. One exception is that a police officer can continue to pursue a driver into the next county or city when the initial violation occurred within his/her jurisdiction. The police officer is not required to stop at the county or city line when pursuing a driver who has committed a traffic violation. There also may be agreements between neighboring cities and/or counties that allow a police officer in one city or county to come over into the next city or county to pursue a person suspected of committing a crime or violating the traffic laws. If that is the basis for an out of county/city stop and arrest, the agreement must be disclosed to the criminal defense attorney and presented as evidence at the trial. If the police officer failed to follow the rules allowing intercity or intercounty stops and arrests, the criminal defense lawyer may be able to get the DUI or other charges thrown out. Also, if the police officer was unreasonable in following the suspect into another city or county, that may be the basis for a motion from the criminal defense lawyer to throw out the DUI or other criminal charges.

In most DUI cases in Florida, the police officer observes the driver violate some traffic law, conducts a traffic stop and then moves into a DUI investigation from there. There is usually no issue with the state proving the element that the defendant was driving or in actual physical control of the vehicle. However, in DUI cases involving an accident, the police officer normally arrives after the fact and does not observe the defendant driving at all. In these cases, the police need to use other means to establish that the defendant was driving the vehicle or in actual physical control of the vehicle. In many cases, the suspect admits to the police officer that he/she was driving the vehicle, and that could eliminate that particular defense to the DUI charge. Of course, we do not recommend admitting elements of a DUI or any crime to a police officer, but people do it all of the time.

When there is no confession from the driver, the police and the state may try to use other means to prove the defendant was driving the vehicle. If the defendant owns the vehicle and was in the driver’s seat when the police officer arrived, that is some evidence that he/she was driving the vehicle. Sometimes, the other person involved in the crash or other witnesses can testify they saw the defendant driving the vehicle. However, in some cases, there just is not sufficient evidence to prove the defendant was driving the vehicle when the police arrive after the fact, even if it seems obvious from a common sense standpoint.

Additionally, this is only relevant in a DUI case involving an accident. In such cases, the police officer can use other evidence, beyond what he/she personally observed, to prove that the defendant was driving the vehicle. In regular DUI cases without an accident, the police officer needs to actually observe the defendant driving or in actual physical control of the vehicle to proceed with a DUI charge.

it is rarely used, but people who commit a crime in Florida can use a necessity defense to avoid charges or be found not guilty of the crime. The defense is rarely used because it basically requires a defendant to establish that he/she needed to commit the crime to avoid the threat of harm or serious bodily injury to him/herself or others. That is not all. In addition to establishing that the crime needed to be committed, the defendant must also show that the defendant did not intentionally or recklessly put him/herself in a position where he needed to commit this crime, the defendant had no other reasonable option but to commit the crime, the harm the defendant was trying to avoid was worse than the crime committed and the defendant stopped the criminal conduct once the necessity was over. As you might expect, outside of a self defense type of scenario, which is its own specific defense, it is very rare for those factors to come together and work for a defendant.

However, when those factors can be argued, a defendant can use a necessity defense to all kinds of criminal charges, including driving under the influence of alcohol or drugs (DUI). In a recent DUI case near Jacksonville, Florida, a defendant attempted to use the necessity defense. A police officer saw him driving at a high rate of speed and driving erratically. The officer conducted a DUI investigation and arrested him for DUI. This was also the defendant’s third DUI in 10 years which comes with enhanced penalties and can be charged as a felony DUI, which is punishable by up to 5 years in prison. At the trial, the defendant admitted that he was driving while impaired from alcohol but argued that he needed to drive in that condition.

The defendant’s story, however, could use some work. He argued that his friend’s cat was sick and he was the only person who could take it to the 24 hour veterinarian’s office. The defendant had the right idea, but this excuse was not nearly sufficient for a necessity defense. As a result, he was convicted of DUI.

In order for a DUI case to go forward in Florida, the initial stop of the driver must be legal. In other words, if the initial stop of the driver by the police officer is not a valid stop, all evidence that the police officer obtains after the stop should be thrown out, which would likely make proving the DUI case too difficult to proceed.

Most DUI cases start with a police officer indicating that he/she observed the suspect violate one or more traffic laws as he/she was driving. Usually, that is sufficient for a traffic stop. From there, the police officer will allege the standard signs of impairment (odor of alcohol, bloodshot and glassy eyes, slurred speech, and so on), and the DUI investigation goes on from there.

However, not all alleged driving conduct is a legitimate basis for a stop and DUI investigation. In a recent DUI case near Jacksonville, Florida, the defendant was driving in a lane that was narrower than normal. Depending on the type of road, driving lanes are normally 10 – 12 feet in width. The police officer in this DUI case testified that he saw the defendant swerve in his narrow lane to the point of driving on top of the lane dividing line. The police officer did not see him drive into the other lane or commit any other traffic violations such as speeding or running a red light. The police officer also did not observe the defendant make any sudden movements with the vehicle, cause any other vehicles to react to him or endanger anyone. The police officer pulled the defendant over for swerving in his lane and subsequently initiated a DUI investigation.

In just about every DUI case in Florida, the police officer is going to ask the driver to submit to a field sobriety exam. The police officer will not typically offer to the driver that he/she is free to refuse the field sobriety exam. The police officer wants the driver to submit to the field sobriety exam. it is a great tool police officers can use to support the DUI case against the driver.

If you are at the point in a DUI stop where the police officer is asking you to submit to a field sobriety exam, chances are the police officer thinks you are drunk. From here, the police officer is going to be observing you with the idea that you are drunk so that bias will certainly affect any subjective decision he/she makes about you. And make no mistake, the field sobriety exam involve completely subjective exercises. In other words, you pass or fail the exams if the police officer says you pass or fail the exams. And he/she already thinks you are drunk.

There are all sorts of problems with the field sobriety exam. Again, it cannot be understated that the sole judge of these exercises during the investigation is a person who already believes you are drunk. The exercises are often not recorded on video although it usually does not take much to have a video camera at the scene. If there is no video recording, it will always be your word that you passed the field sobriety exercises against the police officer’s word that you failed. Even when there is a video camera at the scene, the field sobriety exercises often take place outside of the camera or in the dark so the person watching the video really cannot see what is going on. Some of the exercises are too difficult to see on the video anyway, such as the eye test and touching your finger to your nose.