Articles Posted in DUI

In Florida, when a police officer makes a DUI arrest, he/she will normally ask the suspect to submit to a breathalyzer test to be taken after the arrest. If the suspect agrees to take the breathalyzer test which results in a reading of 0.08 or higher, the state will certainly use that evidence against the defendant in the DUI case. If the suspect refuses the breathalyzer test, the state will attempt to use that refusal against the defendant in the DUI case by arguing that the defendant refused the breathalyzer test because he/she knew there would be a bad result. Of course, there are any number of reasons why a suspect would refuse a breathalyzer test after a DUI arrest, and he/she can argue those in response in the DUI case, but the state will normally have a right to make their argument as well.

However, in order for the state to use a breathalyzer refusal against a defendant in a DUI case in Florida, the police must follow certain rules. One such rule is that when explaining the breathalyzer test to the suspect, the police officer must inform the suspect that if he/she refuses to submit to the breathalyzer test, that refusal can be used against him/her at the DUI trial and result in a suspension of his driver’s license. If the police officer fails to tell the suspect that, the state may not use the refusal against the defendant at trial.

In a recent DUI case near Jacksonville, Florida, a police officer stopped the suspect for driving without his headlights on. The police officer indicated that he observed signs of impairment about the suspect and initiated a DUI investigation. The DUI investigation then led to a DUI arrest. After the arrest and at the jail, the police officer asked the suspect if he would submit to a breathalyzer test. The suspect refused. The police officer then read him the implied consent information including the required information about a refusal of a breathalyzer test being used against the suspect at a DUI trial. The suspect was Hispanic. He understood some English, but his primary language was Spanish. He indicated that he did not fully understand the implied consent warnings. The police officer declined to re-read them in Spanish.

In order for the police in Florida to make a valid arrest for DUI (driving under the influence of alcohol or drugs), a police officer must actually observe the DUI suspect either driving the vehicle or in actual physical control of the vehicle. Actual physical control of the vehicle is often characterized by observing the person in the driver’s seat with the keys readily available or in the ignition.

This seems obvious as most DUI cases in Florida result from the police officer claiming to observe a person driving his/her vehicle in violation of some traffic law, stopping the person and then ultimately conducting some sort of subjective DUI investigation. However, there are cases where the police do not find and observe the suspect until he/she has actually stopped driving and exited the vehicle.

For instance, it is not uncommon for another citizen to observe a person driving erratically, call 911 and then give the 911 operator a description of the suspect vehicle. If the police officer locates the suspect vehicle and verifies with his/her own observation that the driver appears to be impaired while driving, the police officer can stop the driver and initiate a DUI investigation. However, if the police officer finds the suspect driver out of the suspect vehicle, never having seen him/her driving or in control of the vehicle, the police officer could not legally make a DUI arrest even if it is clear the driver is impaired from alcohol or drugs. An element of a DUI offense that the state has to prove is that the suspect was driving or in physical control of the vehicle. The police have to observe this element to make a DUI arrest. If the police do not observe it, even if a non-police witness does, it is not sufficient for a DUI arrest.

DUI arrests in Florida come in all types. Many of them are completely the result of the subjective opinions and observations of a police officer who may be predisposed to believe you are driving while impaired from alcohol or drugs. Once that police officer has it in his/her head that you are driving drunk, basic psychology suggests that every subjective observation and interpretation he/she makes going forward is going to be tainted to some degree by that belief.

In most DUI cases in Florida, the police officer will request that the DUI suspect submit to a breathalyzer test. This test that purports to measure one’s blood alcohol level is not based on the subjective interpretations of the police officer, but it does come with its own issues, such as the reliability of the breathalyzer machine and the breathalyzer’s maintenance and operation. Of course, there are subjective elements to the breathalyzer stage of a DUI arrest. First, not everyone understands that the breathalyzer test is administered only after the police officer has arrested the driver for DUI. As you might expect, once the police officer goes through the trouble of making the DUI arrest, writing a report and driving the suspect all the way to the jail, we do not hear too many (as in none) reports of police officers “unarresting” the driver when he/she blows in the breathalyzer and the results are below the legal limit.

There is subjectivity in the breathalyzer process to the extent that different types of alcohol and different quantities of alcohol affect people differently depending on weight, metabolism rates, tolerance and other factors. There is also subjectivity in how and where the government decides to set the legal limit. Right now, the legal limit in Florida is 0.08. If a person blows in the breathalyzer and the results come back at 0.08 or higher, the driver can be assured that the state will likely file DUI charges. However, even where the suspect belows below 0.08, the state will often file DUI charges depending on the circumstances.

In Florida, we have what is called implied consent which means that any person who obtains a driver’s license in Florida consents to submit to an alcohol test where a police officer makes a valid stop and has probable cause to believe the person is driving under the influence of alcohol. This usually takes the form of a request by the police officer to blow into a breathalyzer at the jail after the person has been arrested for DUI. Whatever the reading is, the state will usually seek to use that evidence against the defendant in court in the DUI case. Where the breathalyzer reading is below the legal limit of 0.08, the police are not likely to unarrest the defendant, for lack of a better word.

A person who has been arrested for DUI can refuse the breathalyzer test. The police will not force a person to blow into the breathalyzer to get a breathalyzer result. In some cases, the police officer can request a test of his/her blood rather than a test of his/her breath. In a recent DUI case that went up to the United States Supreme Court, the DUI suspect refused to submit to a blood alcohol test and the police officer took his blood anyway to test it for alcohol content without a search warrant. The DUI case was appealed all the way to the Supreme Court.

The criminal defense lawyer argued that to take the defendant’s blood was a search and seizure under the Constitution, and it was unreasonable without a search warrant signed by a judge. The state argued that there was an exception to the general rule that the police need a search warrant for a search and seizure. Generally, the state needs a search warrant to search someone, including taking their blood. However, there are exceptions to the search warrant requirement. If there are emergency circumstances, such as the risk of losing evidence if the search is delayed, the state may be able to conduct a search without a search warrant. In this DUI case, the state argued that the blood concentration dissipates as time goes by so the police officer needed to get the blood for alcohol testing as soon as possible.

In just about all DUI (driving under the influence of alcohol) cases in Florida, the police officer is going to request that the driver submit to field sobriety exercises. These are very difficult coordination and balancing tests that are often given to the suspect in parking lots or on the side of the road in poor lighting. The suspect is often nervous because the police officer, who is the sole judge of the field sobriety tests, already thinks he/she is drunk or he/she probably would not have asked the driver to take the field sobriety tests in the first place. The conditions under which a DUI suspect takes the field sobriety tests are far from ideal, and some people are not good at difficult balancing and coordination tests under any circumstances.

Anyone is allowed to refuse a field sobriety test. There are no repercussions with the department of motor vehicles or the courts, such as a driver’s license suspension, for refusing a field sobriety test. There may be very good reasons to refuse a field sobriety test- any injury, poor conditions, poor lighting, fatigue, nervousness, a police officer who seems overly aggressive or just a fear of not doing well based on all of the circumstances.

However, the best reason to refuse a field sobriety test may be that the field sobriety exercises are not videotaped. When a DUI suspect performs the field sobriety tests, there is only one judge, and that is the police officer who already suspects the driver is impaired from alcohol or drugs. The police officer will prepare a report, and if he/she does not think the driver performs well, he/she will write a very incriminating report. Why should a DUI suspect trust a police officer’s completely subjective findings during a field sobriety test when that test may be a crucial part of the state’s DUI case? If the police officer does not explain the tests well, how does a DUI suspect convey that to a judge or jury? Once the case gets to trial, it is the DUI defendant’s word against the police officer’s word. Because the police officer fails to bring a video camera to the DUI investigation, the defendant may be at the mercy of a biased police officer with no way of defending him/herself during a field sobriety test other than a he said/she said contest. Because of this subjective component to a DUI case, a driver should really think twice before taking a field sobriety test that is not recorded by a video camera.

Most DUI cases in Florida are initiated when a police officer sees a driver committing some sort of traffic violation and then pulls him/her over. If the police officer feels as if there is evidence that the driver has been drinking, the police officer will likely begin a DUI investigation. However, there are DUI cases where the defendant was stopped without violating any traffic laws.

In a recent DUI case south of Jacksonville, Florida, the driver drove down a road that was blocked by emergency vehicles farther down. Rather than turn around, the defendant kept driving down the road. The defendant later said that he felt like he had enough room to drive around the emergency vehicles. While this was not the smartest move when the driver had been drinking, he had not violated any traffic laws when he was stopped by the police. The polcie officer saw him driving down the road that was apparently blocked to see why the driver kept driving rather than turning around. After talking to the driver, the police officer initiated a DUI investigation and ultimately arrested him for DUI.

The defendant’s criminal defense lawyer challenged the stop by arguing that the police officer did not have a legal basis to stop the defendant because no traffic laws were violated. In a DUI case, if the initial stop is not legal, then whatever evidence the police officer discovers after the initial stop will likely be thrown out. Likewise, without such evidence, the DUI case will likely be dismissed.

When a person signs up for a driver’s license in Florida, he/she agrees to consent to a breathalyzer test administered by the police if the police have probable cause to believe that person is driving under the influence of alcohol to the extent that his/her normal faculties are impaired. This is what is referred to as the implied consent law. By accepting the privilege of driving in Florida, the driver impliedly consents to take the breathalyzer test after a legitimate DUI arrest. Of course, people refuse the breathalyzer test for any number of reasons after a DUI arrest, and the police cannot actually force someone to take the breathalyzer test. However, if the DUI arrest was valid and the driver refuses the breath alcohol test, the state can administer greater penalties, such as a longer driver’s license suspension, and the state can argue to the jury at a DUI trial that the driver refused the breathalyzer test because he/she knew he/she was drunk and would blow over the 0.08 legal limit. The defendant and criminal defense lawyer can argue other, perfectly innocent and valid reasons why he/she refused the breathalyzer test, and ultimately the issue would be for a jury to decide. In your average DUI investigation by the police, there may be perfectly valid reasons to refuse a breathalyzer test depending on how the police officer is conducting the DUI investigation and arrest.

In addition to a breathalyzer test, the police can obtain a blood sample for a blood alcohol test in some situations. This would not normally apply in a routine DUI arrest after a regular traffic stop where a breathalyzer test is feasible, but a blood test may be applicable after a serious accident that involves an injury or death. In the case of a serious accident, where the suspected driver goes to the hospital for serious injuries, the police may request a blood sample to test for blood alcohol content because the breathalyzer test at the police station is not practical. Additionally, the medical staff may take the suspected driver’s blood and test it for alcohol content for medical reasons. In the former case, if the driver refuses the blood draw, the state can later argue at trial that the driver refused the blood draw because he/she knew that he/she was guilty of driving under the influence of alcohol. If the state gets the blood test results via subpoena after the blood is drawn for medical purposes, the implied consent law does not apply and the state cannot argue any presumption that the driver was impaired by alcohol. However, in either case, the state can subpoena blood test results from the hospital if the medical provider took a blood sample and tested it for alcohol for medical reasons.

In most driving under the influence of alcohol (DUI) cases in Florida, the police officer will ask the driver to consent to a breath, or breathalyzer, test which uses the driver’s breath to try and measure the driver’s blood alcohol content. The legal blood alcohol limit in Florida is 0.08. Also, normally, the police officer cannot request that a driver take a blood test to determine the driver’s blood alcohol content. The driver can request an independant blood alcohol test, but it is not something that the police officer typically mentions in a normal DUI investigation.

One exception is when the suspected drunk driver was involved in an accident with serious injuries or death that involves a hospital visit. In those cases, the police officer can request that the driver provide a blood sample to later test for alcohol content when the driver appears in the hospital for treatment and a urine or breath test is not practical. When a driver was involved in a serious accident involving injury or death, the police officer can request a blood draw to test for alcohol at the hospital.

What if the driver refuses, but the medical staff takes his/her blood for medical reasons? In a recent DUI case near Jacksonville, Florida, a driver was involved in a single vehicle accident and was taken to the hospital. The responding police officer suspected that the driver was impaired by alcohol and requested a blood sample to test for blood alcohol at the hospital. The driver refused to provide a blood sample for blood alcohol testing, but the hospital staff did take blood for medical reasons. Later, the State subpoenaed the blood taken by the hospital and all blood test results performed by the hospital.

As an initial matter, people need to understand that they can be arrested for driving under the influence of alcohol or drugs (i.e. DUI) even if the police never see them driving a vehicle. If a person is in actual physical control of the vehicle, that is sufficient for a DUI arrest if the person is impaired. The classic case of actual physical control is when the police officer sees a person in his/her vehicle with the keys in the ignition, whether the vehicle is running or not. In those cases, the state has a valid argument that the defendant was in actual physical control of the vehicle and guilty of DUI although no one was actually driving the vehicle at the time.

However, the police cannot just detain a person who is laying down in or sleeping in a vehicle whether the keys are in the ignition or not. A common DUI case occurs when the police get a call about, or see, someone apparently drunk or asleep in a vehicle parked somewhere. The police officer will approach the vehicle and see that the person is asleep or passed out in the driver’s seat. The police officer can assume the driver is passed out drunk, but without specific evidence that the person has been drinking or using drugs, the police officer cannot act on that assumption alone. The police officer can knock on the window and ask the driver some questions to investigate further. However, based on this evidence alone, the police officer cannot tell the driver to get out of the vehicle, tell the driver to take the keys out of the ignition or block the driver’s vehicle with his/her own police vehicle.

The bottom line is the police officer cannot force someone to do something or give the person any indication that he/she cannot leave based on an assumption that the driver is impaired from alcohol or drugs. If, after a consensual discussion with the driver, the police officer develops evidence that the person has been drinking or using drugs (such as odor of alcohol or incriminating statements), then the police officer can ask the driver to turn off and step out of the vehicle. However, without specific evidence of impairment, detaining the driver for further investigation or arresting him/her for DUI is improper and should result in the DUI case getting thrown out.