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 a breath or blood alcohol content of 0.08 or higher.
How does the Prosecutor Prove “Driving” and “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.”
How Does the Prosecutor Prove I was Impaired?
As was mentioned previously, the final part of the prosecutor’s case concerns proving impairment or that the defendant’s breath/blood content was 0.08 or higher.
When proving impairment, a prosecutor will look to the same four clues in every case. They are:
- Driving Pattern
- Demeanor / Behavior of the Suspect
- Performance on Field Sobriety Exercises
- Breath/Blood/Urine Testing Results
| Driving Pattern | Did the defendant swerve all over the road? Did he or she fail to maintain a single lane? Was the defendant speeding? Did he or she run a stop sign, red light, or other traffic control device? Did the defendant cause a car accident or crash their vehicle into someone else’s property? |
Ultimately, if there was anything out of the ordinary about the defendant’s driving pattern, you can rest assured that the prosecutor will attribute it to impairment?
| Demeanor / Behavior | Was the defendant belligerent or drunk acting? Did he or she exhibit mood swings, laughing one second, crying in another. Was the defendant exhibit a lack of self–control? Did he or she exhibit any physiological signs of impairment, such as slurred speech, bloodshot eyes, flushed faced? Did an odor of alcoholic beverage emanate from the person? Was there an odor of burnt cannabis? |
Like a driving pattern, if there was anything out of the ordinary about the defendant’s behavior, the prosecutor will argue that such behavior is proof that the person was impaired. This is especially the case when a defendant exhibits the obvious signs of impairment, such as slurred speech, belligerent behavior, odor of alcohol, and the like.
| Sobriety Exercises | Commonly referred to as “Field Sobriety Exercises” or “FSE’s” for short, these exercises were designed many years ago to test a driver’s level of impairment. Like driving, FSE’s are considered “divided attention tasks.” That means a person is subjected to a series of examinations that challenge a person’s ability to follow simple instructions while also performing simple physical acts at the same time. |
In a sense then, FSE’s were intended to mimic the essential aspects of driving. Functions such as stop, go, travel in a straight line, turn when you are told, don’t turn when you’re not supposed to, are all simple commands that drivers face on the road and investigators test in FSE’s.
For example, in the “Walk and Turn” exercise, a driver is asked to take a specific number of steps in a straight line, heel touching toe. The driver is also instructed not to start until told to do so. By having a person walk in this manner, a police officer is able to determine if a driver can follow simple traffic control devices (such as red lights and stop signs). A police officer is also able to determine if a person has the physical wherewithal to walk without falling over, losing balance, or making simple computational errors.
The “Finger to Nose” exercise is not much different. In this exercise, a person is asked to stand at attention and then lift their arm, on command, aiming for and then touching the tip of their nose. Again, just like turning a steering wheel to maneuver a moving car to a very specific location, this exercise tests a person’s ability to lift and turn their arm, aim for a very specific point, and follow simple instructions.
| Breath/Blood/Urine | In the State of Florida, if the prosecutor can prove that your alcohol content was 0.08 or higher, then there is a legal presumption that you were impaired. If the prosecutor is able to accomplish this he or she would not even have to put on any other evidence regarding impairment, such as testimony regarding your performance on FSE’s. |
However, breath, blood, and urine testing is not absolute. Before such evidence can be admitted in court, the prosecutor must establish a number of very important factors. The following represent some of the questions that need to be answered by your defense lawyer before trial:
- Did the officer advise you of Florida’s refusal law before administering the test or accepting your refusal?
- Were you properly instructed in how to give a breath sample?
- Were you observed for 20 minutes before the breath test?
- Was the breath machine properly maintained and calibrated?
- Was the breath machine properly stored?
- Did the breath machine produce valid readings?
If the answer to any of these questions is NO, you may have a good defense. In many cases, charges can be dismissed or dropped to a lesser offense.