Tailgating early and often on the First Coast is a time-honored tradition, and I cannot count the times I’ve been asked, at a tailgate party no less, whether or not one should take the breath test. Other times it’s a simple, “Do I have to take the sobriety exercises” if asked by an officer? Then, there are the repeated questions covering driver’s license suspensions that occur as a result of a DUI arrest. Well neighbors, I’m going to attempt to answer these questions as straightforward as a head coach at a postgame presser. Just kidding, no “coach speak” here. Just the cold-hard facts.
We need to execute!
How many times have we heard a football coach tell the media that after a big loss? Well, in the legal context, we can use that phrase by emphasizing the importance of understanding your rights during a traffic stop. Whether you decide to tell an officer that you are driving home from a Jaguars game and had ten beers and two fireball shots is up to you, but you should at least be aware of your options. There is no requirement that you answer these types of questions. In fact, where one invokes their Fifth Amendment rights, such a response is inadmissible in court. That’s important because many people feel that it looks bad if they invoke, not realizing that it can never be used in court against them. However, some level of cooperation is required such as providing your identification and other documents such as your registration or proof of insurance.
Fourth down, the fourth quarter and the Fourth Amendment.
What do these three things have in common? Nothing. But hey, this is a football-themed article so give me some leeway. All kidding aside though, all three of these things can be critically important at different times. Fourth down in the fourth quarter can oftentimes be the biggest play of a football game. And the Fourth Amendment may be your biggest play on the roadside. For those needing a middle school refresher, the Fourth Amendment protects us from unreasonable searches and seizures. That being said, some courts have ruled that collecting evidence during roadside sobriety exercises is a “search” that triggers Fourth Amendment concerns. Thus, politely declining an officer’s invitation to audition for your freedom on the side of the road is an option at your disposal. Although no attorney can give you specific legal advice for a hypothetical encounter, knowing your options is a good thing.
The Fourth Amendment also comes into play when being asked to search one’s person or vehicle. While there are certain scenarios where an officer does not need one’s consent to search (e.g. inventory search post-arrest and search incident to arrest), it’s important to keep in mind that there is no obligation to allow an officer to search your clothing or your vehicle unless the officer has a lawful basis to do so.
Time to catch your breath, or prevent an officer from doing so, if you know what I mean. Although breath tests are allowed under what is known as the “search incident to arrest” exception to the Fourth Amendment’s warrant requirement, citizens in Florida have been given an option to refuse these tests. However, where one refuses the breath test, their license will be suspended administratively, and they could incur an additional criminal charge if they have refused in the past. For those who do blow, their license is also suspended administratively should they blow over the legal limit.
Drive sober or get pulled over!
We’ve all seen those banners posted at football games. And while encouraging people to drive sober is a noble campaign, it’s actually a misstatement of the law. There is nothing on the books that even remotely suggests that you can be pulled over for not being sober. What our DUI laws prohibit is consuming so much alcohol (or drugs) that one’s normal faculties become impaired. Thus, consuming an amount of alcohol that leaves your normal faculties in an un-impaired state is not unlawful. Although one’s normal faculties are weakened when consuming alcohol, “weakened” and “impaired” are not the same. Think about it. If it was against the law to consume any amount of alcohol while driving, there wouldn’t be a big ol’ parking lot down at the stadium, right?
Lee Lockett, of LockettLaw, is a Jacksonville DUI and criminal defense attorney.