In this unusual and fact sensitive case, J.L. (not his real initials) was at the Pier 2 bar, which is located aside Lake Okeechobee just south of Okeechobee City. According to Deputy Gracie’s arrest affidavit, a bouncer reported seeing J.L. pull his pickup truck forward, thereby striking a tree. Based on this, Deputy Gracie responded to the scene, performed the usual tests, and arrested J.L. for DUI. Deputy Gracie never observed J.L. in a motor vehicle.

J.L. was transported to the Okeechobee County Jail, where he refused to provide a breath test. He did, reportedly, admit to drinking four or five beers, but denied being involved in an accident or driving a vehicle.

Shortly after his arrest, J.L. retained Jeffrey H. Garland to handle the DUI. The initial investigation established that there was absolutely no damage either to the pickup truck (which was registered to J.L.) or the tree. This lack of evidence of damage seemed inconsistent with the proposition that there had been an accident as reported by the bouncer. If a pick up truck hits a tree, will there be damage to the tree, or at least to the truck?

Attorney Garland made several efforts to contact the bouncer for further information about the case. The bouncer failed to respond to any inquiries and, more importantly, was reluctant to respond to the State Attorney’s subpoena.

The State could not place J.L. “behind the wheel” of the pickup truck without the testimony of the bouncer. The State realized that such testimony was absolutely necessary in order to establish the essential element of “actual physical control of a motor vehicle”. The case was resolved on January 13, 2011, by a plea to the reduced charge of reckless driving – not alcohol related. Adjudication of guilt was withheld. This was not a “wet reckless”. There was no requirement to attend DUI school, perform community service, attend a victim impact panel session, or to submit to vehicle immobilization.

Moral: Those who work in the hospitality industry are sometimes “conflicted”. Bouncers, for example, may not always have their employer’s best interest in mind and may occasionally stray to pursue their own interest. On the other hand, bouncers may sometimes act to protect patrons from self-destructive behavior, but are reluctant to do too much for fear of damaging the bar’s business. In every case, an investigation should be conducted to determine whether the key witness is available and willing to testify at trial. Where such a witness may – or may not – appear for trial, both sides face uncertainty as to how a trial might turn out. Such cases provide an opportunity to obtain a favorable plea negotiation as happened in this case.