Articles Posted in DUI

This time of year, around the July 4th holiday, Jacksonville Sheriff’s Office, Florida Highway Patrol and other local law enforcement agencies are out in force looking to stop people for traffic violations and make DUI arrests. The local Jacksonville area police focus on DUI arrests during the July 4th holiday perhaps more than any other time of the year.

Keep in mind that a police officer’s DUI investigation is likely the most subjective process leading to an arrest of any crime. That becomes more of a problem for potential DUI suspects during a time when the police are making a conscious effort to make more arrests. When a police officer has a preconceived belief that a person may be impaired from drugs or alcohol, this could certainly sway his/her opinion as to whether a DUI arrest should be made after conducting the very subjective field sobriety exercises and interpreting the police officer’s very subjective observations about a person’s condition and demeanor. While most people think a police officer’s DUI investigation should be recorded on video in this day and age, a lot of DUI investigations are not recorded by the police. Police officers who do not have video cameras in their vehicles can always call for another police officer who does have a video camera to record the DUI investigation, but they often do not do that. As a result, whether a person is convicted of DUI or found not guilty may depend on the defendant’s word versus the police officer’s word.

Because the police officer’s DUI investigation is so subjective, it is very important for a person to know his/her rights when he/she is pulled over by police and suspected of DUI. First, the driver does not have to answer any questions as to where he/she has been or what he/she has been doing prior to the stop. The driver does not have to take the subjective field sobriety tests that can be difficult for anyone to pass under those circumstances. Basically, when a police officer pulls a person over and initiates a DUI investigation, the driver does not have to answer any questions or perform any field sobriety tests that could incriminate that driver. It is always safe to politely ask to speak to a lawyer.

In Florida, the sequence of a DUI arrest usually goes as follows: a police officer observes a person commit a traffic violation, the police officer stops the driver, the police officer allegedly observes signs that the driver is impaired by alcohol or drugs, the police officer starts a DUI investigation including a field sobriety test if the driver agrees to take it and then a DUI arrest. However, none of the steps following the stop are valid to establish a DUI conviction if the initial stop is illegal.

In a recent DUI case near Jacksonville, Florida, the defendant was driving a vehicle with two seats- one for the driver and one for a passenger- but he had two people in the passenger seat. The police officer saw this and also allegedly saw the driver drive over the double yellow line although no vehicles in the opposite lane were around and at risk. Based on those two reasons, the police officer stopped the driver and ultimately conducted a DUI investigation.

The criminal defense lawyer filed a motion to suppress all of the evidence of the DUI obtained after the initial stop arguing that the stop was invalid. The court agreed that the police officer could not legally stop the defendant because he had too many people in his car. Having too many people in your car, by itself, is not a legal basis to initiate a traffic stop. The police officer would have to testify that the extra person(s) obstructed the driver’s view or otherwise interfered with the driver. There was no such testimony in this case. However, crossing the double lines, even if no other cars are around and no one was endangered, is a traffic violation and was a sufficient basis to initiate the traffic stop. When a police officer gives multiple reasons for a traffic stop and at least one of them is valid, the evidence will not be suppressed based on the initial traffic stop.

In Florida, implied consent means that when a person accepts the privilege of driving on the roads in Florida by obtaining a driver’s license, that person consents to take a breathalyzer test if a police officer has probable cause to arrest the person for driving under the influence of alcohol (DUI). After a DUI arrest, the police officer will still ask the DUI suspect if he/she will submit to a breathalyzer test, and the DUI suspect can still refuse. However, because of the implied consent law, a refusal could mean enhanced penalties, such as a longer driver’s license suspension.

While driving in Florida does, at least in theory, subject a person to a breathalyzer test, it does not give the police the right to automatically request a blood alcohol test. In order for a police officer to get a blood alcohol test in a regular DUI case, the suspect must consent or the police officer must get a court order for the blood. In a recent DUI case south of Jacksonville, the paramedics were called after someone saw the defendant passed out in his vehicle. The defendant told the paramedic that he was a diabetic, and the paramedic took the defendant’s blood to test his blood sugar level. A police officer arrived and suspected that the defendant was drunk. The paramedic gave the defendant’s blood sample to the police officer who had it tested for alcohol content.

The defendant was arrested for DUI. His criminal defense lawyer filed a motion to suppress the evidence of the blood alcohol test. The court ultimately threw out the evidence of the blood alcohol test because the police officer did not have the defendant’s consent or a court order to get the blood sample, whether it came from the defendant or the paramedic. As a result, the blood sample, and the subsequent blood alcohol test, was illegally obtained and could not be used against the defendant in a DUI case.

There is a difference in Florida between felonies and misdemeanors when it comes to a police officer’s right to arrest a suspect without having actually observed the crime take place. There are some exceptions, but the general rule is that a police officer cannot arrest a person for committing a misdemeanor crime unless it was committed in a police officer’s presence. In most DUI cases, the police officer observes the defendant driving in a manner that indicates the driver is impaired, the police officer makes a traffic stop and then initiates a DUI investigation. In those cases, the DUI crime is clearly committed in the police officer’s presence. However, if a police officer does not observe the DUI crime and a police officer does not observe the suspect driving or in actual physical control of the vehicle, the police officer cannot arrest the suspect for DUI. (This does not apply to accident cases.)

In a recent case near Jacksonville, Florida, the defendant parked a car outside of a residence and a witness saw the defendant get out of the car and stagger around until she got back into her car. The defendant started to drive away and nearly hit a parked car. The witness convinced the defendant to stop the car and took the keys. The witness then called police and told them he thought the defendant was drunk. When the police officer arrived, he saw the defendant sitting on the curb and the witness had her keys. The police officer got a statement from the witness about the defendant’s driving and actions, investigated the defendant for DUI, administered field sobriety tests to the defendant and arrested her. She blew over the legal limit on the breathalyzer test.

The criminal defense lawyer filed a motion to suppress the evidence obtained by the police officer after the DUI arrest because a police officer cannot normally arrest a person for a misdemeanor without observing the crime being committed. The court agreed, and the DUI case was ultimately thrown out. While there was a witness who did see the defendant apparently commit a DUI offense, the police officer did not see it. When the police officer arrived, the defendant was outside the car and did not have the keys. Driving the vehicle or being in actual physical control of the vehicle is an element of a DUI offense. Since no police officer ever witnessed the driver satisfy this element, the police officer was not authorized to arrest the defendant for DUI.

In a recent driving under the influence (DUI) case near Jacksonville, Florida, the defendant was involved in a single car accident but was not hurt. The police officer arrived at the scene and observed empty beer cans in the defendant’s vehicle. The police officer then made all of the routine observations police officers normally make in DUI cases- glassy and bloodshot eyes, strong odor of alcohol and slurred speech. The defendant then submitted to the field sobriety exercises, and the police officer determined that he failed and there was probable cause to arrest the defendant for DUI.

At the police station, the defendant submitted to a breathalyzer test. The breathalyzer results came back well under the legal limit of 0.08. The police officer, who apparently had already made up his mind that the defendant was drunk, was not satisfied with these results. He then asked the defendant to submit to a urine test to test for drugs in his system. However, there was no evidence that the defendant had used any drugs- no statements from the defendant, no drugs found at the scene and no drug paraphernalia. The police officer was just relying on his assumption that the defendant was somehow impaired.

The criminal defense lawyer ultimately got the DUI case dropped. The Florida implied consent law allows the police officer to obtain a breathalyzer test if there is evidence that the defendant may be impaired from alcohol. Of course the evidence in this case was the same redundant observations the police check on the DUI arrest report in just about every DUI case. However, that is usually enough for the court to find probable cause to move forward with the breathalyzer test. But once the the defendant produced a low reading on the breathalyzer test, there was no legal basis to request a urine test or any other test to see if the defendant had used any drugs. There was no evidence of drug use to allow the police officer to move forward with a drug test.

In Florida, when a person receives a driver’s license, he/she is consenting to take a blood alcohol test if the police have a legal basis to request one during a proper DUI investigation and the police follow proper legal procedures. A person can refuse a breathalyzer, urine or blood test to check his/her alcohol level, but he/she may face a driver’s license suspension as a result of that refusal. If a person refuses a breathalyzer, urine or blood alcohol test, the police officer may not use any coercive tactics to administer the test.

In a recent DUI case near Jacksonville, Florida, the defendant was stopped for failure to maintain his lane. After a DUI investigation, he was arrested and taken to the police station. The police officer asked if he would submit to the breathalyzer test. The defendant agreed, and the results were 0.00 both times the breathalyzer test was administered. The police officer still believed the defendant was impaired from alcohol and then asked for a urine test. The defendant initially refused the urine test, but the police officer asked repeatedly. Ultimately, the police officer threatened to take him to the hospital to get his urine with a catheter or to take a blood sample. The defendant finally agreed to the urine test.

The criminal defense lawyer filed a motion to suppress the results of the urine test alleging that the police officer used coercive tactics in obtaining the urine sample. The court agreed and threw out the evidence of the urine test. If a defendant under arrest for DUI refuses a breathalyzer or urine test, the police may be able to get a blood sample from the defendant but only with a proper search warrant. In this case, the police officer threatened the blood test to get the defendant to consent to the urine test. However, the police officer did not properly inform the defendant that he would need to get a search warrant for the blood first.

Most DUI’s in Florida stem from a traffic stop. The police officer then decides that the driver is impaired from alcohol or drugs and initiates a DUI investigation which usually involves questions about drinking/drugs, a field sobriety test and a breathalyzer test. However, in order for a DUI arrest to be valid, the initial stop of the defendant must be legal. In other words, if the police officer did not have a legal basis to stop the defendant, the DUI case will be thrown out no matter how impaired the defendant may have been.

In a recent DUI case near Jacksonville, Florida, the defendant was stopped in front of a crosswalk waiting for pedestrians to cross the road so she could make a turn. Apparently, the defendant honked her horn at the pedestrians several times as they crossed the crosswalk. A police officer saw her and approached her after she turned into a parking lot and parked her vehicle. The defendant told the police officer she honked the horn multiple times because the pedestrians were not moving fast enough. The police officer testified that he smelled alcohol coming from her and told her to exit her vehicle. The police officer conducted a DUI investigation and then arrested her for DUI.

The criminal defense lawyer filed a motion to suppress the evidence related to the DUI investigation based on the fact that the initial stop/detention was unlawful. The criminal defense attorney argued that the police officer did not have probable cause to believe the defendant violated any traffic laws before he asked her to exit the vehicle. However the court disagreed and allowed the DUI evidence to come in.

In Florida, in order to be charged with DUI, a person does not necessarily have to be driving the vehicle while impaired from alcohol or drugs. It is sufficient under the Florida DUI laws for a person to be in actual physical control of a vehicle. For instance, if the defendant was impaired while in the driver’s seat with the keys in the ignition, this is sufficient for actual physical control even if the vehicle was in park and not moving.

In another recent DUI case near Jacksonville, Florida, a police officer responded to a call of a possible impaired driver and saw the defendant exit his vehicle from the driver’s side door with the keys in his hands. After administering field sobriety tests to the driver, the police officer arrested him for DUI. The criminal defense lawyer moved to have the DUI case thrown out arguing that the defendant was neither operating the vehicle nor in actual physical control of the vehicle. However, the court disagreed and found that the evidence that the police officer observed the defendant exit the driver’s side door with the keys was enough to establish actual physical control of the vehicle under the Florida DUI laws.

Clearly, the courts in Florida may interpret “actual physical control” very broadly under the DUI laws. If you have been drinking and are impaired, the best thing to do is to avoid your vehicle altogether.

According to a recent survey, Jacksonville, Florida ranks fourth among all cities in the country in DUI (driving under the influence of alcohol or drugs) arrests. The survey was conducted by Insurance.com. It is not clear if the numbers reflect DUI arrests or DUI convictions, but it appears that it refers to DUI arrests as the report notes that there were 3,708 people arrested for DUI in 2010.

We do not know how they do things in other cities, but this does not come as much of a surprise. We have seen many DUI cases, and one thing is clear. Once that police officer decides in his/her head that a driver is impaired by alcohol or drugs, that police officer is going to make a DUI arrest regardless of what the driver says or how he/she does on the field sobriety exam. People in Jacksonville, Florida need to understand that they have a right to remain silent and do not have to answer questions about where they have been, what they have been doing, and if they have had anything to drink. Additionally, they have a right to refuse the field sobriety tests which are a completely subjective and difficult set of balance and coordination tests that can be difficult for anyone under any circumstances. With field sobriety tests, whether a person passed or failed is solely based on the subjective opinion of the police officer who obviously already thinks the driver is impaired or he/she would not have asked the driver to take the test in the first place. If the field sobriety tests are not videotaped, as many are not, the driver has no way to defend him/herself in court when the police officer testifies that the driver failed the field sobriety tests at a DUI trial.