The Law Offices Of Kevin J. Pitts
Some Florida DUI investigations initiate from consensual encounters or a well-being check. A consensual encounter is when the accused consentsto the encounteror by words or actions waives the right to be free from police intrusion. An example of a consensual encounter would be driving up and asking the police for directions after a rough night at the bar. Well-being checks occur when the police (say they) are concerned about an individual’s safety and check on the individual to make sure medical assistance is not needed. An example of a well-being check is when a vehicle is parked on the side of the road with the occupant sleeping in the driver's seat. The police might check on the individual to see if medical attention is needed. If the well-being check is justified and the officer picks up on indicators of impairment a Florida DUI arrest can be made. If the accused is sleeping with the car off and the keys are in the ignition or on the floorboard some courts have held that to be in actual physical control of a motor vehicle. Cloyd v. State, 943 So.2d 149 (Fla. 3d DCA 2006). If the driver is in actual physical control of an operable vehicle while impaired a DUI arrest can be lawfully made. Although if the encounter is not consensual or the investigation becomes a detention prior to the officer having reasonable suspicion of criminal activity the Florida DUI investigation should be suppressed. I will identify common mistakes that turn an investigative stop or consensual encounter into a detention and provide some relevant case law.
If a reasonable person in the situation would not feel free to leave the situation becomes an investigatory stop. If a reasonable person would not feel obligated to stay the situation is a consensual encounter. Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999). For an investigatory stop the police must have reasonable suspicion of criminal activity. No basis is required for a consensual encounter. An officer shining a flashlight in a car is not an investigatory stop. Emergency lights, blue lights or take down lights are equivalent to an investigatory stop. Spotlight is not considered to be an investigatory stop. The use of an air horn is considered a stop requiring reasonable suspicion. If the officer’s vehicle is positioned in the path of the accused reasonable suspicion would be required. Asking for identification to perform warrant checks is not a detention but if the officer retains the license after the warrant check the consensual encounter can become a detention if no justification for the detention is established during the warrant check. Asking an individual to exit the vehicle requires reasonable suspicion of criminal activity.
An officer can investigate a vehicle if they believe the driver or occupant is illtired or impairedIf an officer comes across an individual sleeping in a vehicle requesting the individual to get out of the car can create a detention. An individual was believed to be sleeping in a running car with headlights on outside of an open bar at 1:30 in the morning. Condensation had accumulated on the windows from the air conditioner. The officer knocked on the window and was unsuccessful in waking the individual. The officer then asked the accused to exit the vehicle. The court ruled that asking the accused to exit was a detention and at that point observing someone sleeping outside of a bar in a running car was not sufficient reasonable suspicion to detain the accused. Danielewicz v. State, 730 So.2d 363 (Fla. 1st DCA 1999). If an individual is in this type of situation they should be aware that the officer is performing a well-being check. Once it is determined that the accused is not in jeopardy as long as reasonable suspicion of impairment is not detected the justification for the encounter ends.
If you are impaired by drugs or alcohol be careful not to consent to an encounter. Also remember that implied consent does not apply to field sobriety exercises. Field sobriety exercises are optional and the only consequence of not performing field sobriety exercises is The State can tell the jury you did not perform Field sobriety exercises. Police are trained to pick up on indicators of impairment. If you waive your right to be free of unconstitutional search and seizure the officer will most likely pick up on the indicators of impairment. If the officer picks up on indicators of impairment you will almost definitely be arrested for DUI. If you take a DUI breath test and pass you will almost definitely be asked to submit to a urine test. If you refuse either test you will lose your license administratively for 90 days on the first offense. If you pass the breath test and take the urine test you will be required to remain in jail until The accused is no longer under the influence and The accused's normal faculties are no longer impaired, The accused's blood/breath alcohol level is lower than 0.05; or Eight hours have elapsed from the time the accused was arrested. This applies even if you are not under the influence since it can take over a month for urine resultsto be tested by The Florida Department of Law Enforcement (FDLE)Even if The State Attorney's office drops your case your license will be administratively suspended for DUI refusal unless you prevail at an administrative review hearing.