All driving under the influence cases involve some level of interaction with law enforcement. The Florida Supreme Court has defined three levels of police-citizen encounters. Popple v. State, 626 So.2d 185, 186 (Fla. 1993). The first level is a consensual encounter and involves only minimal police contact. A citizen may voluntarily comply with a police officer’s requests or choose to ignore them during such an encounter. Constitutional safeguards are not invoked because the citizen is free to leave. The next level of police-citizen encounters is “an investigatory stop.” See Terry v. Ohio, 392 U.S. 1 (1968). A “well-founded, articulable suspicion of criminal activity” is required for a law enforcement officer to lawfully perform an investigatory stop. Popple, 626 So.2d at 186. Mere suspicion is not enough. The third level of police-citizen encounters is an arrest, which must be supported by probable cause that a crime has been or is being committed. A consensual encounter becomes an investigatory stop and Fourth Amendment protection is triggered at the point where a citizen who is approached by an officer reasonably believes that he or she is no longer free to leave. Florida v. Royer, 460 U.S. 491, 514 (1983). It is common for a DUI investigation to begin with an officer’s observation of a person sleeping in a car. When an officer approaches a person sleeping in a vehicle, and they are otherwise parked legally and not violating any other law, law enforcement must be careful not to overstep Constitutional boundaries. Where deputy who observed defendant asleep behind wheel of running vehicle knocked on window to awaken defendant, shone light in vehicle, identified herself as officer, and gestured for defendant to roll window down, a court has held that the defendant was seized when he submitted to deputy’s show of authority. Cieslak v. State, 19 Fla.L.Weekly Supp. 681b (6th Cir. Ct. 2012). Because deputy did not have reasonable suspicion for investigatory stop before defendant rolled window down, the stop was unlawful. However, if the officer testifies that he was concerned for the health and welfare of the driver, that may be enough to allow the seizure to be legal. The DUI attorneys at Brandon Legal Group will fight for your right to be free from illegal police seizures.
In order for an officer to make an arrest for DUI, the officer must have: (1) personally witnessed all the elements of a DUI (defendant driving or in actual physical control while normal faculties are impaired by alcohol or a controlled substance); (2) developed probable cause of DUI during an accident investigation; or (3) the combined observations of more than one officer (the “fellow officer rule”) are sufficient to form probable cause for arrest. If probable cause is lacking under any of those three basis for an arrest, all evidence gathered subsequent to the arrest may be suppressed. For example, where a defendant is detained by a citizen and the keys are removed from the defendant prior to the officer’s arrival, the subsequent arrest was illegal because the officer failed to observe the defendant in actual physical control of the vehicle while impaired. State v. Heckel, 19 Fla.L.Weekly Supp. 584c (12th Cir. Sarasota Cty. Ct. 2012). The failure to observe the defendant with the keys proved fatal to the State’s case. Similarly, if the vehicle is disabled when law enforcement comes upon the driver and vehicle, the defense can use the defense of inoperability. Essentially, case law indicates that when vehicle that cannot function, whether due to crash, no gas, tire blowout, etc., the defense can argue that because the vehicle does not work, they are not guilty of DUI. However, if there is circumstantial evidence that the vehicle was operable prior to the crash, and that the defendant was the driver, a conviction for driving under the influence may stand. Nicholas v. State, 19 Fla.L.Weekly Supp. 984a (17th Cir. Ct. 2012). As such, if this is your situation, it is imperative that you utilize your right to remain silent and not make any admissions that you were driving.
Illegal Blood Draw
Generally speaking, law enforcement is authorized to take a sample of your blood for the purpose of testing it for the presence of alcohol or drugs in three circumstances: (1) A person gives the officer consent freely, knowingly, and without coercion, (2) after an accident in which a person suffered serious bodily injury, and (3) if the driver suspected of DUI appears at a hospital or other medical facility and obtaining a breath or urine sample is impractical or impossible. See our blog on this aspect of blood draws. Brandon Legal Group has been representing those charged with driving under the influence since 2007 and has the necessary experience to recognize unlawful and unconstitutional conduct by the officers that investigated your case. Brandon Legal Group will aggressively defend your DUI to ensure that your rights are protected and that you receive the best possible outcome under the particular facts of your case. Call us today at 813.902.3576 and we will gladly sit down with you for free to discuss your case.