Claris Law Legal Blogging Community

Name:

E-mail:

Phone Number:

Zip Code:

Your Question:

Editor: Will Hanlon & Charlie Lambert
Profession: Tampa Defense Attorneys

Category: DUI

State v. P, State v. N; ; Judge: Joelle Ober; Date: February 22, 2007

FACTS: The defendants (clients) both left the Dallas Bull Bar near U.S. 301 and Interstate 4, at around 1:30 a.m. Before leaving the bar each had consumed 1-2 beers. As they left the clients decided to follow each other home. Both clients were unaware that a special DUI enforcement deputy was waiting in a nearby parking lot for patrons to leave. The deputy decided to follow them as they left. Shortly after falling behind the defendants the deputy claimed one was following the other too closely, and stopped his car to cite him for the infraction. After the stop, the deputy claimed he smelled an odor of alcohol and began a DUI investigation of the first client. Because she was concerned about her friend, the second client approached the deputy to find out why they were stopped. After making contact, the deputy claimed he could smell an odor of alcohol on her breath also, and investigated her for DUI.
The deputy claimed that both defendants failed their respective Field Sobriety Tests and arrested them both for DUI. Each client agreed to take the breathalyzer. One defendant blew a .031, and the other blew a .028. The deputy then started grasping at straws. He asked each defendant to drop a urine sample. Both defendants complied, and their urine results ultimately revealed nothing.

DEFENSE: The above scenario is a very common occurrence. The deputy involved in this investigation was a special DUI enforcement officer. These DUI enforcement officers (both at the HIllsborough County Sheriff's Office and the Tampa Police Department) camp outside bars and wait for people to drive away late at night. After the suspects leave the bar, many officers will use any excuse, no matter how weak, to stop the vehicle for some traffic infraction or less. This case is a classic example of a dishonest law enforcement officer using any pretext to stop someone, and arrest them for a crime. It is also points out the risk to law enforcement when they decide everyone leaving a bar at 1:30 a.m is intoxicated. While the officer has a lawful right to park his car outside of any bar and wait for people to leave, he shouldn't just stop vehicles unless his observations warrant the stop.
Here, the deputy stopped the clients claiming one was following too closely. Did the driver actually commit the infraction, or was the officer using it as a pretext to conduct a DUI investigation? When you look at the facts, and realize the driver blew well below the legal limit, it calls into question the validity of the entire investigation, and the lawfulness of the arrests.

It is important to realize that just because these defendants blew well below the legal limit, that does not mean that their DUI charges were automatically dismissed by the State Attorney's Office. In the state of Florida a breath result of .08 or above is prima facie evidence that the person driving was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Florida Statute 316.1934(c). If someone's breath result is between .05 and .08, there is no presumption of impairment. Florida Statute 316.1934(b). If someone's breath result is below .05, it is presumed that the person driving was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Florida Statute 316.1934(a).
In this case, there was a presumption that both drivers were not under the influence of alcohol to the extent their normal faculties were impaired (in short they were not DUI). However, any presumption can be rebutted by evidence. So it does not necessarily follow that you are automatically guilty of DUI if you are above the legal limit, and not guilty of DUI if you are below the legal limit. For instance, in some cases where defendants blow below the legal limit there can be proof that the defendant was driving under the influence of some intoxicant other than alcohol (prescription drugs, marijuana, cocaine...etc.). In addition, every person is affected by alcohol differently. As a consequence, whether you are above or below the legal limit, you should still hire an attorney. This case ultimately resulted in a dismissal of both DUI charges, but it is very unlikely the defendants would have received that result on their own. I have seen many unknowing pro se (self-represented) defendants plead guilty to DUI when they blew below the legal limit. Without an attorney you have no idea of the real strengths and weaknesses of your case.

RESULT: Both DUI charges were dismissed by the State Attorney.