One of the most popular things I’m asked about when people learn I am a criminal defense attorney is DUI (driving under the influence). I’ve listed a couple of the most common questions and tried to answer them to the best of my ability. Keep in mind that DUI is a very complex area of criminal law, and can make even some of the most seasoned criminal defense attorneys cringe. So here are the questions and responses in no particular order:
1) “So what is considered DUI anyway?”
For starters, it’s a lot more than drunk driving. The law in Florida defines the crime of DUI as operating a vehicle or being in actual physical control of the vehicle while affected by either alcohol, or a drug to the extent that one’s normal faculties are impaired. That definition is a lot broader than you might think upon first glance. First, let’s take the definition of “vehicle.” You’re probably thinking of a car, van, or motorcycle, right? Turns out, you can be arrested for DUI for riding a bicycle under the influence. Don’t believe me? I’ve seen it happen and I’ve defended it. The statute only says “vehicle”, it doesn’t say “motor vehicle.”
Next, let’s look at what substance can be used to find you “under the influence.” We usually think of alcohol, but what about things in your medicine cabinet? You can also be arrested for DUI for being under the influence of something other than alcohol, such as marijuana, sleeping pills, Xanax, or anything that requires a prescription, if it’s found to affect your driving. This can be a very tricky area to defend against because substances may still be in your system, even though you are no longer under their influence. A drug test can find the presence of THC (the psychoactive substance found in marijuana) up to 30 days after inhaling the marijuana smoke, even though the person is clearly no longer the influence of the marijuana (i.e. it still shows up in a drug test even though the high is long gone). The drug tests commonly performed by law enforcement to pin a driver with DUI aren’t going to show the concentration of the drug, and will have no way of showing when the drug was ingested. They will just show the drug is in the driver’s blood system, and that can be enough to convict a driver of DUI.
You can also be arrested for DUI if you aren’t driving. The law allows for people to be arrested and convicted for DUI if they are impaired and are in “actual physical control” of a vehicle. A lot of factors are weighed to determine whether someone is in actual physical control of a vehicle, such as whether the vehicle is turned on, whether the person is in the driver’s seat, whether the car is capable of even being turned on, etc.. I’ve seen someone arrested for DUI who had a few drinks and then got into his car to “sleep it off” before driving. He was asleep in the driver’s seat with the keys in the ignition (car was turned off), and the officer knocked on the window to see if the guy was all right, smelled alcohol on his breath when he answered the officer’s questions, and arrested the vehicle occupant (I refuse to use the term “driver” in this instance) for DUI. To determine whether someone is in actual physical control, some attorneys emphasize location: location of the person in the car, location of the keys, etc.. Some analyze whether the car could have been turned on and driven away by the driver within 10 seconds of waking up. And others like to emphasize whether the car itself was even operable. “Actual physical control” needs to be evaluated on a case by case basis, as the definition can vary from one jurisdiction to another, and all circumstances of the arrest must be examined. Unfortunately, there’s no simple answer that applies to all instances that I can provide here in this blog.
2) “Do I have to take the field sobriety test?”
This is one of the few easy questions to answer. NO, you do not have to take the field sobriety tests. The field sobriety “exercises”, as some like to call them, are entirely optional. The fact that you did not choose to do them during your traffic stop should not be used against you, or even mentioned to the jury, at trial for a DUI (because it is not up to you to prove your innocence, it is up to the State to prove your guilt). You may be thinking, “but if I’m not drunk, why not just pass the silly tests to avoid being arrested, I can remember my ABCs in my sleep!” I wish it were true. But the real truth is that most of the time, the officer has already decided that he/she will arrest you for DUI before you’re even asked to perform the exercises, and now the officer is simply trying to gather as much evidence as possible of your guilt. I’ve never heard of someone telling me he/she impressed the officer so much that the officer let him/her drive away from the traffic stop with a warning to not swerve so much on the road next time.
And here’s why: the field sobriety exercises don’t really measure normal functioning, because they don’t ask you to perform normal tasks. Think about it: do you normally walk heel to toe down a straight line for 10 feet and then turn around on your tip toes and walk heel to toe back? Of course not, you’d look stupid. We walk with our feet spaced apart, so we can maintain our balance when we walk and cover more ground. And we tend to pivot when we turn around, not stand on our toes. Do we normally stand with one foot raised 6 inches off the ground while we silently count to 30 and then put our foot down when we think we’ve reached 30 seconds? No, we stand with both legs on the ground. You could be stone cold sober and not be able to stand on one leg with the other 6 inches off the ground for 30 seconds. It doesn’t mean you are drunk at all if you put down your foot after 15 seconds. Why do we rely on activities that force you to perform abnormal tasks in order to measure whether your normal faculties are impaired? Add the nerves and stress caused by the fact you’ve been pulled over by a cop and asked to stand outside of the car and are under investigation of a crime, and let’s see how well you can keep your balance standing on one leg.
Clearly, I’m getting a little whipped up about this, and have strayed too far from answering the original question.
3) Can I call my lawyer when I’m pulled over and being investigated for DUI?
No, in Florida, you do not have the right to call your attorney in the middle of a traffic stop for possible DUI. You do have the right to speak to your attorney before making any statements to police once you are arrested for DUI, with one exception: responding as to whether you will submit to a test of your breath, blood or urine for the presence of alcohol or other substances.
4) Do I have to submit to a breath, blood or urine test?
If you are arrested for DUI and you were either operating or in actual physical control of a motor vehicle, the answer is yes, by law, you are required to submit to the test. Failure to submit to the test will result in an automatic suspension of your drivers license for 6 months. If you have previously refused to submit to the test during a DUI investigation, then a subsequent refusal is a separate misdemeanor offense. The fact that you have refused to submit to a breath, blood or urine test during the investigation can also be used against you in trial and the prosecutor can argue to the jury that you did not take the test because you knew you were guilty. But wait, you’re saying to yourself, I thought you said I don’t have to prove my innocence! That’s true, except for the fact that by being in actual control of a motor vehicle or driving, you have already given your implied consent to submit to a test. If you read the bottom of your Florida driver’s license, you’ll see some print that basically says by operating a motor vehicle, you consent to any sobriety test required by law (breath/drug test….not the field sobriety exercises). Now, you do not have to submit to the test if you are arrested for DUI and you were riding a bike. The implied consent only applies to the operation of motor vehicles. There is no implied consent for vehicles that do not have a motor because you don’t need a driver’s license to operate a vehicle without a motor. I actually had to argue this point to a prosecutor in front of judge who was clearly exasperated with the prosecutor.
Now, the police can’t actually force you to take the test. If you refuse, then you have refused and they will explain the consequences I’ve mentioned above (automatic driver’s license suspension, a separate criminal offense if it’s your second time, etc). And like I said, the prosecutor can argue that you refused because you knew you were guilty. The decision to take the test is yours, and can have strategic implications either way.
5) Can I get a DUI conviction taken off of my record?
The sad truth in Florida is no. If you have been adjudicated guilty (convicted as an adult) of DUI in Florida, you cannot have it sealed or expunged. If you ever find yourself in the unfortunate position of being accused of DUI, make sure you consult an attorney before appearing in court.
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