Driving Under the Influence
A Driving Under the Influence (“DUI”) charge can be a stressful and frightening event. For the most part, people charged with this crime are normal everyday people with families, friends, and jobs. We recognize the importance of one’s ability to drive in maintaining those relationships and employment. At Adam L. Bantner, P.A., we recognize that those charged with DUIs have a lot riding on the successful outcome of their case; which is why I fight hard to challenge every aspect of a DUI charge. The defense of a DUI begins as soon as you take advantage of your free consultation with your Brandon DUI attorney.
If you are arrested for DUI, immediately begin compiling a list of people who may be potential witnesses for your defense. Include people who were with you that can testify as to how much you were or were not drinking and whether you appeared under the influence. Also, if you were out at a restaurant or bar, please obtain a copy of all receipts that would show how many alcoholic beverages you bought. Your defense attorney will need this information to adequately prepare your case for a trial or motion hearing.
Once we are retained to handle your charges, we will examine the facts of your case and determine the most appropriate method of challenging your case. Your DUI attorney will determine whether the stopping officer had probable cause that your committed a traffic violation or whether he had reasonable suspicion of DUI to justify the initial stop. If he did not have the appropriate level of suspicion, we may be able to get all evidence of impairment thrown out of the case.
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 Adam L. Bantner, P.A. 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.
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.
Pursuant to section 316.1932(1)(c), of the Florida Statutes, a person is deemed to have given consent for an approved blood test for the purpose of determining the alcohol content of their blood if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible. Some of the important factors a court will look to determine with the blood was seized legally is the severity of the injury to the driver, the anticipated length of stay at the hospital, whether the hospital has a breath testing machine, and the proximately of the law enforcement breath testing center. In State v. Rolon, 15 Fla.L.Weekly Supp. 290a (Monroe Cty. Ct., 2007), the officer made no effort to determine whether the driver could leave the hospital for testing, the driver appeared to be uninjured, and the breath center was only a couple miles from the hospital. The Court subsequently suppressed the results of the blood test that showed the driver to be above the legal limit.
Adam L. Bantner, II 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. Adam L. Bantner, P.A. 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 me today at 813.416.7965 and I will gladly sit down with you for free to discuss your case.