There are many creative DUI defense strategies that may keep a driver out of jail and prevent the other harsh consequences of a Florida DUI prosecution and conviction.  While many of these strategies are successful, others are not as effective.  One creative but somewhat shaky defense employed in a case in New York may be dubbed the “DUI kissing defense.”  A young lady who was arrested for DUI claimed that she had not been drinking and blamed a failed BAC breath test on the fact that she had been kissing her boyfriend who was highly intoxicated.

The defense was fairly unconvincing because her BAC was .15 percent, which is almost double the legal limit for driving under the influence.  Although the defense was not particularly compelling under these facts, it is not completely implausible.  For example, teen drivers in Florida are subject to a “zero tolerance policy” because they are considered over the legal limit if they blow a .02 percent or higher.  Even a small amount of mouth alcohol may register a .02 percent BAC including mouthwash, cough syrup and perhaps even alcohol exchanged during a kiss.  The key issue is that if someone has mouth alcohol, he or she may produce much higher BAC results than are an accurate indication of the alcohol concentration in the driver’s blood.  While a defense that your double the legal limit result is the product of kissing after not consuming any alcohol is unlikely to be successful, a breath test right at the legal limit or close might make this defense more plausible.

The other issue with the “DUI kissing defense” is that Florida law enforcement authorities are expected to observe a twenty minute waiting period prior to administering a breath test to ensure that nothing is consumed that might cause an inflated result involving mouth alcohol.  Sometimes this waiting period is not observed, which also might make this defense somewhat plausible depending on other factors.  Mouth alcohol produces a much higher BAC result because it has not yet been metabolized by the body and the calculation of BAC of breath from the deep lungs is converted by a ratio to alcohol in the blood.  This ratio is inapplicable to alcohol that is in the mouth.

If you have been arrested for DUI in Florida, it is unlikely that Florida DUI defense attorney John Musca is going to use the “DUI kissing defense,” but the Florida DUI defense law office of Musca Law is committed to a thorough familiarity of all possible defense strategies in Florida DUI cases.  We know which strategies work and which do not and use this knowledge to build the strongest possible DUI defense for our clients.

If you or someone in your family is accused of a Florida DUI, experienced Florida DUI defense attorney John Musca provides tenacious defense with the goal of avoiding the harsh consequences of a DUI conviction.   We invite you to contact a Florida DUI defense attorney at Musca Law to schedule a free confidential consultation at (800) 687-2252 to see how we can help.

Although in most cases a police officer must have reasonable suspicion to pull you over, there is a significant exception to this rule in situations where the police officer is acting as a community caretaker.  The community caretaker legal doctrine is an exception to the general rule that a police officer must have reasonable suspicion based on articulable facts that you have committed a criminal act or are engaged in a criminal act to justify a warrantless detention.  This doctrine permits law enforcement authorities to intervene to assist a driver that may be in distress.  Many people that have had too much to drink may find themselves passed out behind the wheel or otherwise appearing to need assistance so someone who has been drinking should be careful about pulling over to the side of the road to “sleep it off.”

An example of the community caretaker doctrine might include a driver that is parked on the side of the road with the vehicle running while slumped over the steering wheel.  An officer that knocks on the window and cannot awaken the driver might open the car door to inquire and ensure that the driver is not in physical distress.  While this may seem like an altruistic practice, it can be something very different if you have been drinking.  The officer will make observations during this interaction as he would during a regular traffic stop.  The officer will note signs of intoxication like watery blood-shot eyes, slurred speech, mental confusion and the odor of alcohol.  If there are open beer cans in your car or other items in plain view, the officer may legitimately seize these and use them when building a DUI case.

The justification behind the community caretaker doctrine is that the officer does not need individualized suspicion because he is not engaged in a law enforcement function but in a role more akin to a Good Samaritan.  The doctrine is a reflection of the public policy position that we want to encourage police officers to assist citizens who may be in distress.  The reasoning behind the doctrine also provides that the officer should not be penalized by excluding evidence discovered while acting under exigent circumstances (i.e. emergency situations).  While this may seem reasonable, it is not hard to see how a creative law enforcement officer might manipulate this doctrine.  Depending on the circumstances, an officer may be more interested in a “criminal investigation” than assisting a motorist and assert a “reasonable objective belief” that exigent circumstances exist.

The point that the typical driver should take away from this is that you must be careful about pulling over when you feel ill or to “sleep it off” if you have been drinking.  The best option is to simply pull far off the roadway.  If you must pull over on the side of a public road or even into a parking lot, you should put the keys in the trunk and sleep in the backseat.  While an officer may still inquire about whether you are in distress, you will probably be able to avoid a DUI charge because you are no longer “in physical control” of your vehicle.  Under no circumstances, should you remain in the driver’s seat with the keys readily accessible.

If you or a close family member has been arrested for DUI in Florida, experienced DUI lawyer John Musca provides a tenacious defense, including seeking the exclusion of evidence that is illegally obtained.  John Musca may challenge an officer’s purported reasonable objective belief that a motorist was in distress.  We invite you to contact a Florida DUI defense attorney at Musca Law to schedule a free confidential consultation: (800) 687-2252.

This is our fifth installment in a series of articles on Florida DUI law and alcohol related issues.  The purpose of these articles is to dispel common misconceptions about DUI cases in Florida.  We recognize that for many people a DUI case is their first contact with law enforcement or the criminal court system other than minor traffic infractions.  Drivers who understand their legal rights and the DUI criminal process in Florida are in the best position to avoid the adverse consequences of a Florida DUI case.  While this multi-part series of FAQs may answer many of your questions about Florida DUI, we invite you to contact our law firm for answers to additional questions or more detailed information.  Musca Law provides effective and proven DUI defense to those facing DUI related criminal charges throughout Florida.

If you have not consumed any alcohol or drugs, you cannot be convicted of DUI in Florida?

This is not true because the human body actually produces a type of alcohol called endogenous ethanol.  Sometimes drivers produce enough of this substance to cause a positive chemical BAC test.

Police officers sometimes use field sobriety rests that are not approved for use in DUI cases?

There are only three (3) field sobriety tests (FSTs) approved by the National Highway Traffic Safety Administration (NHTSA) as having an ability to identify intoxicated drivers.  While the three approved tests one-leg-stand, walk-and-turn and horizontal gaze nystagmus are the only FSTs that are approved by the NHTSA, other FSTs often are used by law enforcement officers.  These other FSTs referred to as “non-standardized FSTs” are little better than flipping a coin to determine if someone is intoxicated.  Examples that you may have seen on TV or in the movies include: Count backwards test, recite the alphabet test, finger to nose test, Rhomberg balance test and others.  The bottom line is that while all FSTs have a reasonably high false positive rate for intoxication, these non-standardized tests have no validity.

The police cannot force you to submit to a blood test to determine if you are over the legal limit of .08 percent BAC?

While it is generally true that you have the right to decline blood testing for BAC, there are exceptions and potential consequences for exercising this right.  Under Florida’s implied consent law, you are required to consent to chemical testing of your blood alcohol concentration (BAC) subject to suspension of your driver’s license for a refusal.  A second refusal may result in a longer suspension and a misdemeanor criminal conviction.  There is also a forced DUI blood test procedure that has been used by some law enforcement agencies in Florida called “no refusal” DUI checkpoints.  If you refuse a breath test, the officer will call a judge who is on-call to issue a warrant to take your blood, but least one Florida Appellate Court has ruled that this procedure violates Florida’s warrant statute.  Another situation where law enforcement officers may forcefully take your blood is if you are arrested for DUI following an accident that results in injury to another vehicle occupant.

Can I be arrested for DUI drugs if I have only used a negligible amount of marijuana?

Florida DUI drugs cases are very different from DUI cases involving alcohol.  Unlike alcohol, drugs like marijuana can remain in your system for weeks or even months.  Even if the drugs remain in your system, it does not mean that your driving is impaired.  This makes DUI drug cases more difficult and expensive for district attorneys to prosecute because they must actually prove your mental or physical capacity to drive reasonably safe was impaired at the time of your arrest for being under the influence of drugs while driving in Florida.  Sometimes the officer may be able to do this by testifying that your driving violated traffic safety laws or that you were involved in a collision.  When the officer has not observed poor driving and you have not been involved in an accident, a Drug Recognition Expert (DRE) will be summoned to the scene and will administer a series of tests.  A DRE has special training intended to facilitate identifying drugged drivers.  The prosecutor often must rely on a DRE authority or medical expert to testify about the impact drugs may have had on your driving.

If the only medication in my system was prescribed by a doctor for a medical condition, I cannot be successfully prosecuted for DUI?

It does not matter whether you have taken a drug as directed by a doctor or even taken an over-the-counter medication that can be purchased without a prescription.  If your driving is impaired by the medication, you may be arrested and prosecuted for DUI.

The most effective weapon against unjust DUI prosecutions is knowledge of your legal rights and remedies.  Many people arrested for DUI justifiably are nervous and fail to exercise critical rights, such as the right against self-incrimination (right to remain silent) or the right to have an attorney present during investigation.  In other cases, those arrested for DUI in Florida may not realize their options and potential consequences when being asked to participate in FSTs or a breath or blood test of BAC.  Accurate information and an awareness of your rights can be the best protection against a DUI conviction.  We invite you to contact a Florida DUI attorney at Musca Law to schedule a free confidential consultation at (800) 687-2252 to see how we can help.