After catching a performance at the Kravitz Center in West Palm Beach and having a couple of glasses of wine with dinner at the nearby Ruth's Chris Steakhouse, Mr. Doe settles in behind the wheel of his car for an uneventful drive back to his home in Fort Lauderdale. It is late at night, and I-95 is nearly abandoned. With such little traffic, Mr. Doe puts on the cruise control at a moderate 75 m.p.h. and turns on the radio to listen to some music. Just as he is working the controls of his radio, his eye catches the reflection of the streetlight off of the black silhouette of a Florida Highway Patrol car. His heart sinks as he realizes he's the only car on the road, going 10 m.p.h. over the speed limit. The trooper's headlights immediately turn on, as if the squad car has suddenly awoke from a comfortable slumber. Mr. Doe nervously hits the breaks to bring his car down to 65 m.p.h., and clumsily puts both hands back on the steering wheel, causing his car to slightly swerve within its lane. The trooper quickly accelerates, so that the police car is almost touching the back bumper of Mr. Doe's vehicle. The flashing lights illuminate the sky, and Mr. Doe begins to sweat with nervousness. He pulls over the car and waits for the trooper to walk over to his driver's side window, wondering if his breath still smells of the wine.
The above vignette is purely fictional, but it is representative of similar incidents that happen every night in Palm Beach, Broward, and Miami-Dade counties. While D.U.I. is a serious problem in Florida and the rest of the country, drinking and driving is not necessarily against the law. It is perfectly legal to drink alcohol and operate a motor vehicle, so long as the person operating the motor vehicle is not under the influence of alcohol to the extent that his/her normal faculties are impaired. Unfortunately, law enforcement officers in Florida are required to make subjective judgments on whether an individual's normal faculties are impaired, which often results in false allegations of D.U.I. Fortunately, the law includes numerous protections for individual drivers, which, if understood and followed, could greatly reduce the likelihood of an unfair conviction for D.U.I.
First and foremost, it is important to recognize that D.U.I. investigation, like all criminal investigation, is about collecting evidence. In the context of D.U.I. investigations, officers collect evidence by making as many observations about the driver as possible. This observation process begins the moment the officer focuses on a driver while the driver is operating his/her motor vehicle on the road. The officer is looking to see whether the driver is speeding or going too slow; whether the driver is drifting or swerving in his/her lane; whether the driver is obeying traffic devices or driving aggressively. These observations are called "driving pattern observations." The moment an officer pulls over an individual who has been drinking and driving, the officer has already made at least one observation (and possibly more) of a driving pattern that the officer will consider as evidence of D.U.I.
However, observations of a driving pattern do not establish probable cause to arrest for D.U.I. Indeed, observations of a driving pattern alone are not enough to provide a basis for a D.U.I. investigation. Before an officer requests a driver to conduct Field Sobriety Exercises (F.S.E.'s), the officer must have reasonable suspicion to believe that the driver is under the influence of alcohol or a controlled substance, to the extent that the driver's normal faculties are impaired. In order to establish such a suspicion, the officer must make some observations that indicate the driver is under the influence. Typically, these observations include the smell of alcohol on the driver's breath, slurred speech, bloodshot and glassy eyes, and unsteady balance.
In the seminal case of State v. Taylor, the Florida Supreme Court held that an officer's observations that a driver "staggered" and exhibited "slurred speech, watery, bloodshot eyes, and a strong odor of alcohol," coupled with a driving pattern of speeding, provided "more than enough" to establish reasonable suspicion. In Origi v. State, the Fourth District Court of Appeal held that where an officer observed a driving pattern of speeding, coupled with bloodshot eyes and a smell of alcohol, the officer had enough reasonable suspicion to request F.S.E.'s. Indeed, in virtually every case where the courts have validated reasonable suspicion, the officer observed a smell of alcohol on the driver's breath (see State v. Amaqrane).
Thus, in order to avoid an unfair arrest for D.U.I., it is obviously best to simply not drink and drive at all. Even when a driver drinks modestly, and his/her normal faculties are not impaired, the mere smell of alcohol coupled with speeding might justify the initiation of a D.U.I. investigation. In the event a driver who has had a modest amount to drink is pulled over, it is in the driver's best interest to limit his contact with law enforcement. The more a driver speaks, the greater the likelihood that an officer will smell alcohol and initiate a potentially embarrassing D.U.I. investigation.
In future entries, we will discuss the law pertaining to contact between drivers and law enforcement officers, as well the law regarding F.S.E.'s.