Recently, there has been a huge debate over the constitutionality over DUI checkpoints, specifically whether drivers have to interact with law enforcement at a DUI checkpoint. These heated debates have caused many Hernando County drivers to ask, “Legally, what are my rights at DUI stops and DUI checkpoints?”. DUI Stop v. DUI Checkpoint In order for an individual to understand his or her rights at a DUI stop or DUI checkpoint, one must understand the difference between the two forced interactions with law enforcement. DUI Stop: A law enforcement officer cannot stop an individual for no reason. In order to stop a person, the police officer must have “reasonable suspicion” based on articulable, objective facts that criminal activity is afoot. Essentially, an officer must observe certain behavior that any reasonable person would have concluded criminal activity was possibly on-going or occurred. In DUI cases, the following behavior is usually sufficient to establish reasonable suspicion:
- Driving significantly below the speed limit
- Swerving in other lanes or failure to maintain lane
- Erratic or reckless driving
DUI Checkpoint: DUI checkpoints are temporary, pre-arranged locations at which law enforcement stop every driver that approaches the checkpoint. Reasonable suspicion is not required, because the officer indiscriminately stops each driver. Field Sobriety and BAC Testing At both DUI stops and DUI checkpoints, the officer may ask drivers, whom they suspect are driving under the influence of alcohol or drugs to submit to field sobriety tests or BAC tests. In the state of Florida, law enforcement may request the following tests:
- Horizontal Gaze Nystagmus– Generally, the officer will ask the driver to step out of the vehicle. Then the officer will request the driver to follow an object, such as a pen or stylus, in a straight horizontal line with his eyes. The officer is looking for a nystagmus or eye twitching, which can occur for several reasons, including intoxication.
- Walk-and-Turn– This is possibly the most identifiable test. The officer will request the driver get out of the vehicle and walk in a straight line, one foot in front of the other. Once the individual reaches the end of the line, he will be asked to pivot and walk back in a straight line, one foot in front of the other.
- One-Leg Stand– The officer requests the driver old his foot approximately six inches off the ground with both hands by his sides.
With the aforementioned tests, law enforcement officers are granted considerable latitude. The officer can request the driver submit to more than one of the aforementioned test and also request the individual perform other tasks, such as counting or reciting the alphabet. Another test an officer may perform is a BAC (Blood Alcohol Concentrate) test or a chemical test. In the field, an officer will generally perform a breathalyzer test. The officer will request the driver blow into the portable breathalyzer machine. If the driver blows and has a BAC of 0.08 of higher, he or she may be charged with DUI. Can I Refuse these Tests? Knowing the difference between a field sobriety test and a BAC or chemical test is important when making a decision to refuse to take such test. An individual can refuse a field sobriety test. In most instances, it is actually recommended. The officer’s dash cam video and the officer’s testimony regarding the test can be introduced if trial is necessary. Refusal to take these tests takes away most of the prosecution’s evidence. BAC or chemical tests are completely different. An individual may refuse to submit; however, refusal to submit has consequences. Florida is an “implied consent” state. This means that by virtue of driving on Florida’s roads and highways, an individual consents to chemical testing if suspected of DUI. The first time an individual refuses a BAC or chemical test, his driver’s license is automatically suspended for twelve months, regardless of whether the individual is convicted of DUI. The driver’s license will be suspended for 18 months for subsequent refusals. Whether you should refuse or submit to field sobriety testing depends on the individual facts of your case. On average, I would recommend to perform the field sobriety tests, but refuse the breathalyzer test if the driver has consumed alcohol. Conclusion Ashley Aulls is an experienced criminal defense attorney and managing attorney at The Law Office of Ashley Aulls, P.A. He aggressively defends individuals facing drunk driving and DUI charges, including first DUI, felony DUI, DUI manslaughter, Underage DUI, and Drugged DUI. If you are facing criminal charges in Hernando County or the surrounding areas contact Attorney Ashley Aulls and The Law Office of Ashley Aulls at (352) 593-4115 to schedule a confidential consultation to review your case. The Law Office of Ashley Aulls, P.A. proudly represents clients throughout Florida, including Hernando County, Sumter County, Citrus County, and the surrounding areas of Spring Hill, Brooksville, Timber Pines, and Homosassa Springs.