What the State Must Prove to Convict You of DUI in Florida

To prove the crime of Driving Under the Influence (DUI), the State (Prosecutor) must prove the following elements beyond a reasonable doubt:

1. The Defendant drove or was in actual physical control of a vehicle.
2. While driving or in actual physical control of the vehicle, the Defendant:
   1. Was under the influence of alcoholic beverages, a chemical substance, or a controlled substance to the extent that his/her normal faculties were impaired; or
   2. Had a blood/breath-alcohol level of .08 or more grams of alcohol per 100 milliliters of blood or 210 liters of breath.
      

“Actual physical control of a vehicle” means the Defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether he/she is actually operating the vehicle at the time. This means that an officer may have probable cause to arrest someone for DUI even if he/she is not actually driving the vehicle. Just sitting behind the wheel or sleeping behind the wheel may be enough to provide law enforcement with probable cause that you are in actual physical control of a vehicle.

“Normal faculties” include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform many mental and physical tasks of our daily lives.

An officer must have probable cause to arrest someone for DUI. An officer will use what is referred to as the “totality of the circumstances” in determining whether he/she believes there is probable cause to arrest. The “totality of the circumstances” means looking at the suspect’s driving pattern, speech, color of the face, motor skills when retrieving documents, how the suspect’s eyes look, among other factors.

An officer may ask a suspect if he/she will perform field sobriety tasks. Remember, a person in the State of Florida is under no statutory duty to submit to field sobriety tasks, and the officer cannot force you to do them. The officer is under no duty to tell you that you do not have to submit to the field sobriety exercises, so keep this in mind if you ever find yourself in a situation where you are being investigated for DUI.

The attorneys at Cotton & Gates have handled hundreds of DUI cases, and they are very knowledgeable about DUI laws in the State of Florida. If you have been arrested for DUI or any other criminal charge contact Cotton & Gates to schedule a free consultation to evaluate your case and discuss your rights.

Florida's Stand Your Ground Defense and the Castle Doctrine

In Florida, like most states, a person is allowed to use force to defend himself or herself or others against another person’s criminal actions, whether those actions are directed toward that person or that person’s belongings or someone else. Below we will discuss some of the statutes and cases pertaining to this area of the law.
Section 776.012 of the Florida Statutes states, “A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

1. He or she reasonably believes that such force is necessary to prevent imminent death or great bodily to himself or herself or another or to prevent the imminent commission of a forcible felony; or
2. Under those circumstances permitted pursuant to s. 776.013.”

Section 776.013 of the Florida Statutes commonly referred to as the “Castle Doctrine” states in pertinent part that “(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

1. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
2. The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.”

Section 776.031 of the Florida Statutes deals with the use of force in the defense of others and states, “A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.”

The next section, Section 776.032, is the actual Florida Statute that provides a person with statutory immunity from criminal prosecution and civil action for the justifiable use of force. Section 776.032 states in pertinent part, “(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force . . .”

The Florida Supreme Court, on December 16, 2010, handed down a new decision directly regarding Florida’s Immunity Statutes. In Dennis v. State, which is still in the time frame for appeal and has not yet become final, the Court addressed the issue of whether a trial court should conduct a pretrial evidentiary hearing and resolve issues of fact when ruling on a motion to dismiss asserting immunity from criminal prosecution pursuant to section 776.032, Florida Statutes, commonly known as the “Stand Your Ground” statute. The Court concluded that “where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity.”

The Court agreed with Florida’s 1st District Court of Appeal (1st DCA) when it decided Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008) and disapproved of the 4th DCA’s earlier ruling in Dennis.

The reasoning behind this is that the Florida Legislature “intended to establish a true immunity and not merely an affirmative defense.” An affirmative defense is a defense which a criminal defendant may raise at his or her actual jury trial. The ruling inDennis means that a criminal defendant has the ability to have a judge decide, as a matter of law, before subjecting himself or herself to a trial, whether he or she is immune from criminal prosecution and civil action based on the facts the particular case.

It is explained that a trial judge must be the finder of fact at such a pretrial evidentiary hearing, and that he or she must weigh only factual disputes. It is the defendant’s burden, by a preponderance of the evidence standard (51%), as to whether the statutory immunity applies.

The attorneys at Cotton & Gates are well versed in Florida’s Stand Your Ground Law and the Castle Doctrine, and we have argued several of these types of motions in our Florida state court system. A link to the full opinion in Dennis v. State is below.


http://www.floridasupremecourt.org/decisions/2010/sc09-941.pdf