If a person accused of DUI refuses to submit to field sobriety exercises or to submit a breath sample a common concern is whether the refusal can be used against the DUI Defendant in Court. As to the driver's license, being deemed to have refused will cause an automatic suspension unless a review hearing is requested and won at the Department of Highway Safety & Motor Vehicles (DHSMV).
In a DUI arrest, when a breath test is not available or feasible, or if the circumstances allow, law enforcement may seek a sample of the accused driver's blood to determine a blood alcohol concentration or content (BAC). The question of whether and how the police may take the accused DUI driver's blood has been considered by the United States Supreme Court in the last few years.
In Florida, a person accused of DUI has faced mandatory adjudication, also known as conviction, for many decades. In cases where the Court is not restricted, it can also withhold adjudication which means that technically a person is not convicted. The difference can have far reaching consequences. For example, a DUI cannot be expunged because of the conviction and convictions stay on a driving history for up to seventy-five (75) years. Convictions also require higher surcharges and court costs.
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.
Arrests and the resulting criminal accusations happen every day. Common questions are how can they arrest when there are conflicting stories or can they arrest for whatever just happened. Unfortunately, that is the wrong question. If someone was just arrested, then the answer is yes the cops can and in fact they did just make that arrest. Now the accused has to defend themselves but the only place that happens is at a trial and that will not be for several months.
Arrested for DUI? Before going to court, a driver's license will be suspended 10 days after the DUI arrest if the person refused to give a breath sample or sumbmitted to the test and blew over a .08. As to the license to drive, there are three options (1) request a hearing to reverse the suspension called a Formal Review Hearing, (2) request hearing for an immediate hardship license or (3) do nothing. The choice to do nothing is a choice to accept a driver license suspension. The deadline to file an election for a hearing at the Department of Highway Safety and Motor Vehicles (DHSMV) is also the same 10 day period before the suspension is imposed. The DUI citation is a driving permit for those same 10 days.
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.
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.
Roadblocks or "Roadside Safety Checkpoints" as they are referred to by law enforcement are legal only if the police follow the rules. Yes, the Constitution does still apply as do the laws of the State of Florida, even though it certainly does not feel like it or a particular law enforcement officer's god complex has raised its ugly head. In order to be legal, they have to have followed several steps including publishing an operational plan, communicating the plan and then actually complying with the operational plan.
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)