After litigating thousands of DUI cases, I realized that most people do not understand how easy it is to get arrested for DUI.
Did you know that you can get a DUI even though you were NOT driving?
Due to all the horrible deaths, especially to young people, that have occurred in Florida as a result of drunk driving, the Florida Legislature has passed some of the most stringent and demanding DUI laws in the nation. These laws are enforced by local police departments and the Florida Highway Patrol using a zero tolerance standard. As a consequence, Florida prosecutes an enormous amount of DUI cases every year.
- FAQ’s Regarding Florida DUI Lawyers
- DUI and Car Insurance
- DUI Breath Test and Urine Test
- DUI Defense Strategies
- DUI Manslaughter
- DUI Penalties
- DUI School
The Prosecution’s Case
To obtain a conviction at trial, the prosecutor must prove the following three legal elements beyond and to the exclusion of every reasonable doubt:
- That the defendant “drove” or was in “actual physical control” of a motor vehicle.
- That the defendant was under the influence of alcohol or a controlled substance.
- That this influence rose to the level where the defendant’s normal faculties were “impaired” or the defendant had abreath or blood alcohol content of 0.08 or higher.
How does the Prosecutor Prove I Was “Driving” or in “Actual Physical Control“?
In most cases, proof of driving is rather obvious. However, things can get tricky when the case involves someone who was in “actual physical control” of a vehicle, but was not driving. Cases of this type usually concern people who pulled over to “sleep it off” or who were sitting in a parked car while the engine was running.
According to Florida Statutes, “actual physical control” occurs when a defendant is physically on or in a vehicle and has the capability to operate the vehicle, regardless of whether or not he or she was actually operating the vehicle at the time. As a rule of thumb, if the engine is on or the keys are in the ignition, you may be in “actual physical control,” even though the car was parked and not moving.
While the concept of “actual physical control” may sound silly, the reasoning behind this rule stems from the notion that people should not be in a position to operate dangerous machinery while impaired. Insofar as the law is concerned, a motor vehicle is considered a dangerous machine.
How Does the Prosecutor Prove I was “Under the Influence”?
Every single police report supporting a DUI arrest almost always begins the same way. First a traffic stop is made or the police explain some other reason for coming into contact with a person in a motor vehicle.
Second, the police almost always claim, uncannily, that the subject had some combination of “glassy, bloodshot, or watery eyes and a flushed face” coupled with an “odor of alcoholic beverage” or “an aroma of burnt cannabis” emanating from inside the vehicle, the person’s body, or the person’s breath. Sometimes police officers will also claim that the subject spoke with a slur for good measure.
While such claims are undoubtedly true in many cases, these reports are written the same way in almost every case for a very specific reason. Namely, by memorializing these specific observations, a police officer will be able to accomplish two tasks in a court of law: First, he or she will be able to establish a reasonable basis for detaining the person and conducting a DUI investigation. Second, should the case go to trial, these observations will be used to prove that the defendant was“under the influence of alcohol or a controlled substance.”
Remember, testimony is evidence!
The believability of the police officer is not relevant – yet! For purposes of establishing that a DUI suspect was “under the influence,” a prosecutor satisfies the minimum requirements of law when the police officer testifies that he smelled alcohol and observed the person to have some outward physiological sign of influence, such as a flushed faced, blood shot eyes, or a slur.
Thus, to prove that a person was “under the influence,” a prosecutor will rely on the testimony of the investigating officer, who undoubtedly will say he smelled alcohol and observed some combination of “red, blood–shot, watery eyes and a flushed face.”