In Florida, the criminal offense of Driving Under the Influence (DUI) can be committed in more than one way. At its core, DUI laws seek to prevent the operation of vehicles by those who have had their reaction time, coordination and ability to think clearly impaired by alcohol or chemical substances. Thus, for any DUI case, the prosecution must be able to prove beyond a reasonable doubt that: 1) the accused person has ingested alcohol or drugs; 2) that it has had an effect, or influence, on them; 3) to the extent that their abilities, or “normal faculties” have become impaired. Because determining and later proving the extent of a person’s impairment of “normal faculties” due to alcohol can be subjective and sometimes difficult, the law also allows a DUI charge to be proven based upon the amount of alcohol in the body, as measured by a percentage by weight of alcohol in the blood, or breath. It thus becomes important for anyone who chooses to drive a vehicle after drinking alcohol to be able to make a clear judgment as to whether they are over the “legal limit” before deciding to drive, or at times, whether to consent to a breath or blood test.
Proof of Impairment DUI – Walking the Walk and Talking the Talk
One way that a DUI may be proven in Florida is called an “impaired driving” DUI. The Florida DUI statute, section 316.193(1)(a), prohibits driving while under the influence of alcohol or a controlled or chemical substance “to the extent that the person’s normal faculties are impaired”. The law defines normal faculties as “the ability to see, to hear, to walk, to talk, to judge distances, to drive, to make judgments, to act in emergencies and to normally perform the many mental and physical tasks of daily life.” There are generally two ways that police officers and prosecutors use to provide proof of impairment from alcohol or drugs by a driver: 1) how you act; and, 2) what you tell them.
Often the most important evidence used by the authorities to prove impairment DUI is the information given to them by the accused driver. As part of a standard DUI investigation, law enforcement officers in Florida follow fairly standard procedures and use similar forms. One form used in a DUI investigation by all police agencies in the Tampa Bay area is called an Alcohol Influence Report (AIR), with various supplemental forms. These forms guide the officer in a DUI investigation by asking for certain questions and observations to be made of the DUI suspect. For example, nearly every form calls for certain questions to be asked of the suspect which inquire as to whether alcoholic beverages have been consumed, what type and how many drinks. There are further questions as to the time and place the drinking occurred. A driver in Florida is not required to answer these questions! Although you may not, and should not, lie to the police during an official investigation, the only questions you are required by law to answer are to provide your truthful name, date of birth, address and, if involved in an accident, an account of how the accident occurred, solely for purposes of an accident investigation and not as part of a criminal DUI investigation. Despite this, many drivers volunteer their drinking history to the investigating officer, including the number of drinks and the name of the bar where their credit card slips can be located to further assist the prosecutor in the tally of alcohol consumption. (If this sounds unlikely to happen, rest assured that the author has, on more than one occasion while he was a prosecutor in Pinellas County, subpoenaed credit card receipts from bars in order to aid in proving an otherwise weak DUI case). The value to the police and prosecution of the suspect’s own admissions as to consuming several drinks prior to driving is invaluable for proving a DUI case.
The other main type of evidence in impairment DUI cases comes from the officer’ observations of the suspect driver’s physical characteristics and actions. The officers typically note such information on standard forms which are used in nearly every DUI case in the Tampa Bay area – odor of breath, speech, attitude, balance exiting the car and walking, and so forth. The standard forms have checklists for recording observations, such as “bloodshot”, “mumbling”, “unsteady”, “confused” and so forth. One such DUI Supplement checklist in common use lists over thirty “impaired” observations for possible checking and only six “normal” observations. Rest assured that during a DUI investigation, the officers are not focused on making you look good!
Another method that law enforcement officers use to collect information and provide proof of impairment for a DUI case is the Field Sobriety Test (FST). Field Sobriety Tests were developed from research sponsored by the Federal National Highway Traffic Safety Administration (NHTSA) in an attempt to provide pseudo-scientific evidence for what are essentially subjective observations by a police officer of a suspect. FST’s consist of an eye exam followed by two or three physical tasks. The eye exam given by police officers during a DUI investigation is called the Horizontal Gaze Nystagmus test (HGN) in which the officer will ask you to hold your head still while your eyes follow a light. The officer is looking at your eyes as you move them from side to side in order to detect rapid spasms. Although alcohol can cause a person’s eyes to spasm while moving them from side to side, there are other causes of these spasms or nystagmus which may be misinterpreted by the officer. At any rate, the results are not recorded or objective and the judge and jury will only have the officer’s word as to what your eyes did during that test. The physical tests consist of the Walk and Turn and One Leg Stand. Sometimes a police officer will also use the Finger to Nose test. These tests are designed as “divided attention” tests and meant to distract the person taking them. They can be difficult to do, especially under the stress of a police investigation by the side of a busy highway and often at night. The instructions for each test are detailed and officers often have learned to say them in a manner that can be somewhat confusing in order to make the DUI suspect appear “impaired”.
Don’t Walk, Don’t Talk
You should politely decline to answer any DUI related questions the officer asks of you (other than ID information as noted above) or to take any of the field sobriety tests. There is no penalty for declining to answer a police officer’s questions. It is not admissible in court and judges and prosecutors know that the refusal to talk is worthless as evidence. The only penalty for not taking field sobriety tests is that the judge and jury will be told that you refused them, as if that in itself is an indication of your guilty conscience. However, it is easy to explain to a jury or the judge that you are not particularly coordinated and that you didn’t believe you could perform on the side of the road at that time.
How the Legislature Made it Easier to Prove Impairment
Because gathering evidence of someone’s impairment of normal faculties due to ingesting alcohol or other substances can be difficult and subjective, the DUI laws have included the ability to prove impairment by the amount of alcohol present in someone’s blood or breath. Thus, under Florida’s DUI laws, if a person has a Blood Alcohol Concentration (BAC) of .08% or more, they are presumed by law to be impaired. If their BAC is .05% or less, the law presumes that they are not impaired. Between .05% and .08%, there is no presumption and the proof of impairment must rely upon other evidence, such as bad driving, slurred speech, swaying, poor balance and inability to follow instructions or perform tasks requiring divided attention (Field Sobriety Tests, or FST’s). Therefore, a breath test result could be very important evidence in determining whether a person was too impaired to drive or not. The decision whether or not to take a breath test is not an easy one to make, especially after a few cocktails! Breath tests as administered in the Clearwater, St. Petersburg and Tampa Bay areas by Intoxilyzer machines can be a little like playing the tables in Las Vegas. Future blog posts will talk more about Florida DUI law as it involves Blood Alcohol Concentrations and breath and blood tests.
In every Florida and Clearwater, St. Petersburg and Tampa Bay area DUI case, there are many factors which need careful analysis by an experienced and aggressive DUI attorney. Sometimes what might seem to be an “open and shut” DUI case may actually be incapable of proof beyond a reasonable doubt by the prosecutor and could result in a dismissal, a not-guilty verdict or a reduction of the DUI charge to a lesser offense. If a DUI leads to sentencing, an experienced attorney can work to keep the DUI sentence imposed as minimal as allowed by law and to lessen the impact of the DUI on your life and your wallet. If you or someone you know is facing a DUI in the Tampa Bay area, call the Office of Clearwater DUI Attorney Garry Potts at (727) 538-4166 today to schedule a free consultation.