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.
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)
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.
Many criminal cases such as drug possession, drug trafficking and not just DUI or other criminal traffic charges begin with a mere traffic stop. Until recently, clients were advised that if they are driving a blue car and the registration states the registered vehicle is white then, that alone is a sufficient basis for a stop. This would mean that if a person purchased a used car that was white, registered it and then had it painted black with red flames the mere fact that the car was painted would cause an inconsistency with the registration sufficient to justify a traffic stop. Many times, this is where the officer says they smell marijuana or they have a dog that alerts to cocaine or other drugs. When drugs are found a person is charged with possession or drug trafficking. In other words, painting your car is going to get you stopped but only at the discretion of the officer's suspicion. While it may seem outrageous that you can be stopped merely for painting your car, that may appear suspicious to a government worker driving a government car who is not responsible for the government paint job. That and people who steal cars tend to switch the plates of similar make and model cars. Obviously, in the eyes of law enforcement officers anyone who paints their car is suspicious.