I tried my first DUI case in 1981. At that time, there were two separate offenses dealing with driving while intoxicated. One was DUI, or driving under the influence of alcohol to the extent one’s normal faculties are impaired. The other was DUBAL, or driving with an unlawful blood-alcohol level. One could accumulate three DUI convictions before exposure to mandatory jail time. Similarly, one could accumulate three DUBAL’s before the judge had to impose a mandatory jail sentence. As you might expect, a defendant would plead to DUI on his first offense and then a DUBAL on a second offense, a DUI on his third offense in a DUBAL on his fourth offense, and so on. Rarely did a defendant receive jail time because of the interplay between the two statutes. It was a good time to be an impaired driver.
But even in 1981, the law had dispensed with the notion of drunk driving. Originally, in order to be convicted of a crime, the prosecutor had to prove, first, that you were driving, and second, that you were drunk. That proved to be a difficult task in many cases, so the law changed during the 1970s to make it easier to convict people. Instead of proving that the defendants was driving the vehicle, prosecutors only had to prove that he had the capability of driving the vehicle. In other words, prosecutors no longer had to “put the defendant behind the wheel.” More importantly, prosecutors only had to prove impairment, and not drunkenness. In a DUI case, a prosecutor must prove only that the defendant’s normal faculties were impaired, whatever that means. In a case of DUBAL, he has to prove the defendant’s blood alcohol level was over .10%. Still, too many defendants were “getting off.”
Over the years, a steady evolution has occurred, all designed to make it easier to convict drivers of DUI. For instance, there is no longer a distinction between driving under the influence and driving with an unlawful blood-alcohol level. The state is allowed to prove guilt under either theory. No longer is .10% the line of demarcation between impaired and non-impaired driving, but .08%. In 1981, if a driver refused to consent to a breath test, his refusal was inadmissible evidence at his trial. Now, not only is it admissible, but prosecutors routinely argue that the driver must’ve been impaired; otherwise, he would’ve taken the breath test. Prior to legislative enactment permitting this strategy, appellate courts had determined that it was both irrelevant and prejudicial to the defendant. Many will argue that these are positive changes in the law, all designed to get impaired drivers off of our streets and highways. That may be, but it can also lead to absurd results.
Any experienced DUI attorney has dealt with the driver who was “sleeping it off.” In this case, instead of driving away in his car, the impaired driver realizes he has had too much to drink and decides to spend the night on his front seat. His car keys are either in the ignition or in his front pocket. Under the law, he can be convicted of DUI because he is impaired and he has the capability of driving off in the car. The fact that he chose not to drive the car is irrelevant to the prosecution’s case. In my experience, some jurors will use common sense and vote to acquit, others will apply the letter of the law, and convict.
I predict that before the end of my career I will see a case involving a motor home that is parked in a campground. An overzealous police officer will arrest the owner because he is obviously intoxicated and he has the ability of driving off in the motor home, notwithstanding that the owner is in his pajamas and has his vehicle is connected to water and sewer. This same scenario can apply to the yacht owner whose vessel is securely moored to the dock.
Obviously, a suspect does not have to be operating a car, a motor home, or a boat to be arrested for driving under the influence. But at least he has to be inside of a motor vehicle, right? Unfortunately, it is unlawful to be in control of a “vehicle” while impaired. Basically, a “vehicle” is defined as any mode of transportation that has wheels. Under the law, an intoxicated person on a bicycle, skateboard, electric golf cart, or any wheeled instrumentality could be arrested for DUI. Again, any experienced DUI attorney has observed a case involving a drunken bicyclist. My career will not be complete until I have seen a case where a police officer arrests and intoxicated skateboarder who was walking down the sidewalk with a skateboard under his arm.
If you must drink to excess but still travel from point A to point B, I suggest you ride a horse. A horse is not a vehicle and so you can ride a horse while you are under the influence of alcohol or drugs. More importantly, a horse is considered a “pedestrian” under the law. Apparently, the only law you have to consider offending while riding a horse is the offense of jaywalking.
If you are a horseless drinker, however, sooner or later you are bound to be pulled over by a police officer. Sometimes the only hope of avoiding a DUI conviction lies in the hands of the jury. In this situation it is better to have a lawyer who is more lucky than good. Obtaining a sympathetic jury in a DUI case is strictly and operation of the block of the draw. I recall one case, in particular, where I was extremely lucky.
Tina was tall and attractive. She also liked to party. She was driving erratically through the town of Carrabelle, Florida, when she was pulled over. (Carrabelle was made famous in the 80s for having the nation’s smallest police station, a phone booth.) Since Tina was a native of Carrabelle, she knew the arresting officer personally. She accused the officer of sexual harassment. When she was transported to the city hall for the breath test, she refused, still continuing her rant against her unfair arrest. At one point, Tina ripped open her blouse revealing her bare torso and exclaimed something to the effect of “This is what you are really after.” Unfortunately, Tina also had a mixed drink in the console of her vehicle and had spilled alcohol on the front of her clothing. She refused the breath test.
Tina insisted upon a trial. Since the local county judge was away, a circuit judge in Tallahassee presided over the trial. We selected the jury on Monday and tried the case on Tuesday. All of the evidence and testimony went as expected. By early afternoon we had a verdict. Tina was acquitted. After the trial, the judge asked me to give him a ride to St. George Island where he had rented a home for the week. He explained that he had expected to be in court all day and his wife would not return with their vehicle until 5:00 PM. I obliged.
During the 15 min. ride to the Island, the judge commented upon the State’s case and indicated that he had expected a conviction. He wanted to know my opinion regarding the strength of the state’s case. I explained that the State had a good case but that I was simply lucky during jury selection. I had actually represented one of the jurors in a prior case where I was successful in obtaining a dismissal of a felony charge against him. Another juror had been on a prior jury in which I was the attorney. She acquitted my client and I formulated the opinion that she was the type of person who was reluctant to return a verdict of guilty. There was also an elderly woman on the jury who had a vendetta against the Carrabelle Police Department. I felt confident that I had three votes for acquittal even before the trial began.
On more than one occasion, however, the luck of the draw has worked against me. I represented a truck driver charged with DUI in Liberty County. He consented to the breath test, and flunked it. Unfortunately, a DUI conviction would cost him his job. We had no choice but to proceed to trial and hope for the best.
Most DUI attorneys agree that one should avoid religious jurors and teetotaler’s. Liberty County is home to many persons of the Mormon faith who eschew all strong beverages, even iced tea and Coca-Cola. After exhausting my three peremptory challenges, I ended up with two Mormons on the jury. Generally speaking, it is also better to have men on the jury, as opposed to women. After all, men are more likely to be understanding of having a few cold ones after a long day at work. I ended up with six women seated as my jurors.
After selecting the jury on Monday, I returned Tuesday morning for the trial. A photographer from the local newspaper was taking pictures of the jury. I inquired as to the reason why. I was informed that my jury was, in fact, the first all woman jury ever seated in a Liberty County trial. I pondered the possibility that the newspaper would run a front-page story about the trial with a headline: ” First All-Woman Jury Acquits Drunk Driver.” I knew the possibility was far-fetched and was not surprised when they returned a verdict of guilty against my client.
