The DUI laws in Florida permit the police to arrest and charge any driver they have probable cause to believe a) is operating a motor vehicle while under the influence of alcohol, chemical substances, or controlled substance, to the extent that a person’s normal faculties are impaired, or b) is operating a motor vehicle with a blood alcohol content (BAC) level of .08 or more.
Florida DUI arrests can be based either on the amount of alcohol present in your system or merely because the police officer has probable cause to believe your normal faculties are impaired by alcohol, drugs, or some chemical substance. If you were charged with DUI based on police observations only, with no supporting alcohol breath test, you need to contact an experienced DUI criminal defense attorney immediately.
DUIs with low or no breathalyzer evidence depends entirely on the subjective observations and descriptions reported by the arresting police officer. These DUI cases are extremely susceptible to the challenges made by experienced DUI defense lawyers like Ben Stechschulte and Amy Nell.
How Can Prosecutors Prove DUI without Breathalyzer Results?
DUI cases without any breath, urine, or blood tests can be referred to as “observation DUIs.” Under Florida law, the prosecutor in a DUI without breathalyzer evidence must prove beyond a reasonable doubt that the driver’s normal faculties were impaired by alcohol, drugs, or chemical substance. The only evidence is the reported observations made by the police, and perhaps a video. (Video can be helpful to an observation DUI defense.)
The judge or jury must determine whether the defendant’s “faculties” were “normal.’ The faculties the law specifically states are as follows:
Normal Faculties: “normal faculties” is defined as including “the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life.”
Fla. Statute § 316.1934 (1)
The prosecution must not only prove that the driver was operating a vehicle with impaired normal faculties, it must also prove the impairment was accompanied by alcohol, drugs, or a chemical substance.
In Tampa and all through Hillsborough County, Stechschulte Nell, Attorneys at Law, have defended and won DUI cases that were based only on an officer’s observations. Our extensive experience defending DUIs in the Tampa area gives us great confidence that we can help you aggressively defend your “observation DUI.” Contact us right away at 813-280-1244.
“Observation Only” DUIs v. Breathalyzer DUIs — Defenses
Many people think a DUI can only be proven if the police have a breathalyzer machine test result higher than the legal limit. But the absence of high blood alcohol content (BAC) does not protect you from a DUI conviction.
Breathalyzer DUI Cases: Defending a breathalyzer DUI or an observation DUI charge involves many of the same strategies. But breathalyzer DUIs (or urine or blood test DUIs) present an especially persuasive layer of evidence that needs to be discredited or disqualified. The results of a breathalyzer or other lab test indicating an illegal level of alcohol in a driver’s system present an element of proof that can determine the outcome of the case.
Many breathalyzer results are disallowed because of police procedural errors. But if breathalyzer results survive the array of evidentiary challenges made by your DUI defense lawyer, judges and juries are often swayed by the “scientific” quality of that evidence.
Not so in cases involving observation DUIs.
Observation DUI Cases (Low or No Breathalyzer): When a DUI prosecution is without the presumably reliable scientific lab test or a breathalyzer result, the entire case hinges on the arresting police officer’s reports, their testimony, and video (if any). Defending an observation DUI requires a skilled DUI defense lawyer’s examination of every fact the officer relates, either in writing or verbally.
Challenges Experienced DUI Defense Lawyers Should Make in Observation DUIs:
Was there reasonable suspicion of criminal activity or driving infraction to initiate a traffic stop?
Was there reasonable suspicion of DUI to justify Field Sobriety Tests (FSTs)?
Were the FSTs administered properly and in compliance with NHTSA manual?
- If not, result may be unreliable
- Challenge officer’s subjective scoring of defendant’s SFT performance
- Test officer’s training (maybe quiz from the NHTSA manual)
- Did defendant actually perform well? (Police video often assists defendant
Did police recite DUI rights properly and fully?
Was a breathalyzer test performed?
- Defendant presumably scored low and passed (eliminates alcohol alone)
Determine defendant’s behavior observed at police station (emphasize good balance, responsive answers, clear speech, etc.)
Field Sobriety Tests
Observation DUIs must rely on some evidence other than the unstructured perceptions of a police officer. To provide some form of ostensibly reliable information to the judge or jury, the government teaches officers to administer a group of tests to check the acuity of a driver’s senses of balance, hearing, thinking, etc.
These tests were approved for roadside use and validated by research back in the 1980s. The National Highway Traffic Safety Administration (NHTSA) publishes a manual emphasizing that the tests’ reliability is dependent on the proper administration of the tests by the officer.
Two of the tests, the One-Legged Stand, and the Walk and Turn, are physical performance tests in which the driver must complete the exercise but must also listen to, understand, and follow the officer’s directions. These are called “divided attention” tests. Even sober, humans have a limited ability to focus on two tasks at once. Alcohol and other drugs can make the completion of tasks that much more difficult when you are required to divide your attention. Many of the alleged SFT failures by drivers are because they did not follow the officer’s instructions about how to perform the test.
Horizontal Gaze Nystagmus — The horizontal gaze nystagmus test is much more controversial. This test is based on the finding that a driver under the influence of alcohol will demonstrate an involuntary jerking of the eyeballs. To perform this test, a driver is usually told to keep their head still but to follow a pencil or a finger the officer moves from left to right in front of the driver’s eyes. If the nystagmus (jerking) begins before the driver’s eye move 45 degrees, called “early-onset nystagmus,” the driver is indicated to be under the influence of alcohol.
Is this a reliable test suitable for admission into evidence to indicate alcohol-induced impairment?
Florida courts have ruled the test to be admissible based on NHTSA studies finding a 77% rate of accuracy in detecting blood alcohol levels above .10. But the verdict is still out on whether the HGN test is reliable as it applies to drug intoxication because drugs and alcohol affect the brain differently.
Charged with a DUI?
If you have been charged with a DUI even though you blew under the BAC limit, call our experienced DUI attorneys for a case review.
Contact Stechschulte Nell, Attorneys at Law for expert DUI defense; 813-280-1244.