West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          Jeff Norman of The Huffington Post recently emailed me the following question:

          "What makes it legal for police to detain a DUI arrestee until he or she is 'sober,' when the only purpose of the detention is to maintain safety, and there is no intent to bring the arrestee before a judge for arraignment?  I’m not questioning anything about the arrest or booking process; I’m only asking about the extended detention (usually an overnight jail stay) that begins when the booking process has been completed.  I believe such detentions are illegal, despite conventional wisdom which suggests otherwise.  Your thoughts?"

          What Jeff is referring to is Florida statute section 316.193(9) which states:

          "A person who is arrested for [DUI] may not be released from custody:

          (a) Until the person is no longer under the influence of alcoholic beverages, any chemical substance . . ., or any [controlled] substance . . . and affected to the extent that his or her normal faculties are impaired;

          (b) Until the person's blood-alcohol level or breath-alcohol level is less than 0.05; or

          (c) Until 8 hours have elapsed from the time the person was arrested."

          Florida's Fifth District Court of Appeal dealt with Jeff's question in the case of State of Florida v. Atkinson.  In Atkinson, one of the issues that the Court was asked to decide was whether putting someone in jail for 8 hours after he is arrested for DUI is a violation of the double jeopardy clause of the Florida Constitution and the United States Constitution.  In other words, is a person who is jailed for 8 hours after being arrested for DUI being punished twice if he is subsequently prosecuted for DUI?  If the answer is yes, then such a procedure is a double-jeopardy violation, and the prosecuting authority should not be permitted to prosecute that person for DUI.

          The Atkinson Court did not agree, however, that locking someone up for 8 hours after being arrested for DUI and later prosecuting that same person for DUI is a double-jeopardy violation.  The Court reasoned that:

          "The practice of detaining an intoxicated driver is to protect that driver and the community from an unreasonable danger imposed by drunken driving.  It is a situation analogous to the detention of persons under quarantine orders wherein a threat is posed to the public health and safety. . . .  There is no claim or indication in this case that the statute is being arbitrarily enforced in an unconstitutional manner."

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1.  What do police officers look for before stopping  a driver who they think might be intoxicated?

According to the National Highway Traffic Safety Administration, some of the things that police officers should look for include:

• Driving more than 10 miles below the speed limit
• Almost striking another car on the road
• Weaving within one's lane of traffic
• Erratic braking
• Driving at night with headlights off

2.  What should I say if I'm stopped by an officer and he asks me if I've been drinking?

Because it is not illegal under Florida DUI law to drink and drive, it is alright to tell a police officer that you've been drinking.  However, be careful not to say that you had only one or two beers if you actually drank more than that, the reason being that the breath-testing machine may later prove that you drank a lot more than just one or two beers.

3.  The police didn't read me my Miranda rights when they first stopped me.  Can I get my case dismissed?

If only it were that easy.  The police have to give you your Miranda rights only when you are in custody and being questioned.  The United States Supreme Court has also ruled that a person is not typically in custody during a routine traffic stop.  Therefore, the police are not ordinarily required to give you Miranda warnings when first speaking with you.

4.  Will my driver's license be suspended if I refuse to do the DUI exercises by the side of the road?

No.  Refusing to do the DUI exercises is different than refusing to blow into the breath-alcohol testing machine.  If you refuse to blow into the breath-alcohol testing machine, Florida law states that your license will be suspended for 1 year for a first refusal or 18 months if your license has been previously suspended for refusing to blow into such a machine.

5.  Do I have the right to a blood-alcohol test in addition to a breath-alcohol test after I am arrested for DUI?

The Florida Supreme Court has ruled that a police officer must render reasonable assistance in helping an individual arrested for DUI get a blood-alcohol test if the individual requests such a test.  If the officer does not do that, then the results of the breath-alcohol test should not be presented to the jury at trial.

6.  What is the 20 minute rule?

According to the Florida Administrative Code, the results of breath-alcohol tests are not valid unless the arresting officer or the person administering the test can reasonably insure that the person who is asked to blow into the machine did not take anything by mouth or did not regurgitate for at least 20 minutes before blowing into the machine.  If this rule is not complied with, then the results of the breath-alcohol test should not be presented to the jury at trial  nor should DMV suspend the person's driver's license.

7.  Do I have to go to jail if I am convicted of DUI?

According to Florida DUI law, a judge has the authority to send someone convicted of DUI to an alcohol treatment program or drug treatment program rather than to jail.

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