Being that I am a former prosecutor, it is appropriate to discuss Driving Under the Influence (DUI). First and foremost, the most popular misconception in that area is that driving under the influence is driving drunk. Most people picture a staggering person falling into his or her car and driving. But for the most part, most people may not be staggering. At first glance a person may appear okay. However, DUI is driving impaired. Statute 316.193 of the Florida criminal statute governs DUI. It defines DUI as a person driving or in actual physical control of a vehicle while under the influence of alcohol or a controlled substance to the extent the person’s normal faculties are impaired. While that may be a handful, there are several elements in determining if someone is impaired.

First, there must be actual physical control of the vehicle. This means that the person is physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether the person is actually operating the vehicle. This may seem like a ‘no brainer,’ however, similar to many other issues in law, there are grey areas. Imagine having too much to drink and knowing so. You decide to go to your car to sit for a few hours to let the alcohol pass through your system. While in the car you get hot or cold and decide to turn on the A/C or heat. Even though the intention may not be to drive, the fact that the key is in the ignition, establishes physical control. Furthermore, imagine instead of trying to wait a few hours in your car, you decide to sleep in your car. If your lights are on or your keys are near the ignition, this may establish actual physical control.

Second, there must be a vehicle. Vehicle is defined as every device, in, upon or by which any person or property is or may be transported or drawn upon a highway. This very issue has been in the news lately, as a 61 year old man was convicted of DUI for using a motorized lazy-boy to get home from a bar after being drunk. While a person may just associate a vehicle with an automobile, this too can be a broad issue as demonstrated by the motorized lazy-boy. Next, the person must be under the influence of alcohol or a control substance such as cannabis. Essentially, there must be proof of alcohol or drugs. While the smell of alcohol is somewhat easier to detect since it has a distinctive odor. Someone under the influence of a drug such as cannabis is harder to detect due to the absence of odor, if the cannabis is not smoked in the car. Lastly, normal faculties must be impaired. Normal faculties are defined as those faculties of a person, such as the ability to walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and in general, to normally perform the many mental and physical acts of our daily lives. The idea is the ability or lack of doing certain daily tasks establishes whether one is in control of his normal faculties. Furthermore, impaired is defined as to weaken, to make worse, to lessen in power, diminish, or relax. Essential, the ability for someone to do certain tasks determine whether someone is impaired. The most popular method for police to determine whether or not a person’s normal faculties are impaired is through field sobriety exercises. These are a series of tasks used to measure whether someone is impaired. An example of those exercises is the one leg up, where an individual attempts to stay on one leg while counting. An impaired person will have difficulties in completing such an exercise.

While the above are the elements to DUI, there are two major issues one must know in this area of law. First, there must be a reasonable cause or suspicion for a police stop. A police can not stop a person’s car if there is no reasonable cause. Reasonable cause is established when police witness a traffic violation such as running a red light. However, if there is no articulable reasonable suspicion, the stop is illegal and unconstitutional. Next, while upon having a license, a person essentially agrees to perform field sobriety exercises and a breath test upon demand by a law enforcement officer, it is equally important to understand a person is protected by the constitution from self incrimination. Therefore, while it is required to perform field sobriety exercises and breath tests, it may be ideal not to perform activities that may later incriminate an individual even though by not fulfilling these requirements subject a person to sanctions by the department of motor vehicle. It is important to know a person does have a choice in this matter. Someone that believes he or she may be impaired and intends to fight in court may desire not to take these tests even though it means facing consequences through the department of motor vehicle.

As laid out throughout this article, the area of DUI consists of a series of steps in determining whether
someone is impaired. Many of these steps at first glance may appear straightforward, but there are many
gray areas within this body of law. In addition, even though each of the steps may have been met, police
officers must show reasonable cause for a stop and the person that is stopped is protected from self
incrimination albeit the person’s decision may lead to sanctions by the department of motor vehicle.

Author: Byrnes Guillaume, Esq.
Published: F. Cunnigham Bar Association Newsletter
December 2009