An element the State has to prove in a DUI is that the accused was either driving or in "actual physical control" of the vehicle. Actual physical control sounds simple enough but the question of what is actual physical control has generated some interesting case law. Of note is that if the accused was not driving or the car was not moving, then the State can still prosecute a person having actual physical control.
In criminal and traffic defense a common complaint from an accused individual or their family is that the arrest affidavit, arrest report, accident report or citation contains one or more errors. For example, if there is a DUI accusation with a child in the car but the officer marks on the DUI citation that there were no passengers under the age of 18 or marking "no injury" on a traffic ticket in a case involving a near fatality. (actual examples). The ugly truth is that the police, deputies and troopers filling out these documents are people too and they make mistakes. Unfotunately, typographical or similar errors will usually not lead to a case being dismissed.
A car accident leads to a traffic crash investigation which often time leads to criminal charges such as drunk driving or DUI. Floridians should be aware that the law requires them to cooperate with a traffic crash investigation. The intent behind the reporting requirement is to encourage true and uninhibited reporting of accidents, with the ultimate goal of making highways safer.
Arrested for DUI? Refusal to submit a sample of breath, blood or urine is a criminal offense in Florida if the person's license has been suspended in the past for refusing to submit to testing. An officer can request a driver to blow into the breath machine if a person is lawfully arrested. Unfortunately, officers will put people down as having 'refused' a breath test even when a person tries to blow. In the context of urine, stage fright will still be marked as a refusal.
Recently, the Gainesville Police Department announced that it will begin a "Click it or Ticket" campaign. Some will feel as if this is really to generate revenue or is really a fishing expedition. Several years ago, the law changed allowing police to stop cars when the driver or a passenger is not belted. Before that, an officer could not conduct a traffic stop merely for not wearing a seatbelt. Presently, an officer in Florida can pull you over just for not wearing a safety belt.
A frustrating issue defending those accused of Driving Under the Influence or DUI, has been the lack of a definition of the word "impaired" in the standard jury instructions. Without a breath, blood or urine result or sample the State of Florida must prove that the person is "impaired" in order to convict a person of DUI. This is especially true if the accused is DUI by drugs or prescriptions. However, the Florida Supreme Court in issuing jury instructions has sought fit to leave the word "impaired" undefined.
Auto accidents frequently give rise to criminal cases in addition to civil lawsuits and traffic tickets. For example law enforcement may charge a driver in a car crash with Reckless Driving with Property Damage, Vehicular Manslaughter, DUI Manslaughter, DUI with Serious Bodily Injury, DUI with Property Damage, Leaving the Scene of an Accident, Failure to Render Aid, etc. Vehicular Manslaughter is essentially Reckless Driving with a Death. If law enforcement does not believe a crime was committed, then the driver will be charged with careless driving. (More on the difference between Careless Driving and Reckless Driving)
The Department of Highway Safety and Motor Vehicles ("DHSMV") has jursidcition to suspend licenses for refusal to submit a breath sample, however their jurisdiction must be properly obtained. A person who is arrested for suspicion of Driving Under the Influence of drugs or alcohol ("DUI") in Florida will be asked to provide a sample of their breath by blowing into an Intoxilyzer 8000. If you refuse to blow, then your license will be suspended but you can challenge the suspension at an administrative hearing at the Department of Highway Safety and Motor Vehicles ("DHSMV"). There are several challenges that can be raised at a DMV hearing.
In Florida when a person is suspected of DUI Manslaughter or DUI causing serious bodily injury the police can use reasonable force to get a blood sample to test. A blood test can only be obtained when there is probable cause to believe the driver is under the influence and caused a serious bodily injury or death. This includes serious bodily injury to the driver. Law enforcement DOES NOT have authority to force a blood test or blood draw in a plain DUI, DUI with property damage or DUI with bodily injury.
Recently I took a Reckless Driving with Property Damage case to trial. Reckless Driving is a criminal traffic offense. Recklessness requires the State to prove a willful and wanton driving pattern likely to cause damage. Furthermore, Reckless Driving is needed to prove Vehicular Homicide, but not DUI Manslaughter. Careless driving is a civil citation, see my blog on the difference between reckless driving and careless driving for more.