J.W.B. was arrested for DUI on April 2, 2009. He retained Jeffrey H. Garland one week later.
J.W.B. was arrested for DUI on an isolated stretch of rural road in St. Lucie County. Police responded to a call from a nearby resident who wondered why a car was stopped at approximately 2:30 A.M. at the end of the caller’s driveway.
In any DUI case, the State must prove that the accused was in “actual physical control of a motor vehicle”. In this case, the initial responding deputy, David Leigh, could place J.W.B. behind the wheel, but did not actually see J.W.B. drive. Garland identified actual physical control as the primary issue in the case.
The defense investigation established that the car had a “shredded tire”, which would have made driving the car nearly impossible. However, “nearly impossible” would not have been a defense. The burden of showing “inoperability” falls on the defense. In this case, the defense was able to prove that this particular car, a Ford Crown Victoria, had an automatic fuel turn-off switch. When the rear tire suddenly disintegrated, the jolt caused the fuel turn-off switch to discontinue the flow of fuel to the engine. A few moments later, the car became inoperable due to a lack of fuel.
The car was plainly inoperable at the time Deputy Leigh initially arrived. It would remain inoperable until the next day, when a tow truck employee showed how to reset the fuel turn-off switch.
Deputy Leigh appeared for a formal review hearing at the Bureau of Administrative Review. At this hearing, Deputy Leigh admitted that he did not carefully watch J.W.B. perform standardized field sobriety tests which were administered by the DUI deputy. Deputy Leigh observed a half empty liquor bottle in the back seat and discarded cans of energy drink which contained alcohol. According to Deputy Leigh, J.W.B. was “behind the wheel” of the parked car upon the deputy’s arrival.
The DUI deputy, Peter Lamborghini reported that J.W.B. failed the standardized field sobriety tests. On this basis, and in light of the alcoholic beverage containers, Deputy Lamborghini placed J.W.B. under arrest. J.W.B. would later refuse to submit to a breath test.
911 records established the exact time of the call made by the rural resident. 911 dispatch records showed the exact times that Deputy Leigh and Deputy Lamborghini arrived at the scene. There was plenty of time for J.W.B. to consume the beverages after stopping.
The roadside video showed that J.W.B. performed well and with no obvious signs of impairment. Importantly, the video also showed the arrival of J.W.B.’s brother who explained to the deputies that he had been called to pick up J.W.B. and a passenger, because a tire had blown out, and the car would not start.
J.W.B. was just 20 years of age at the time of the arrest. As such, he was subject to a presumption of impairment with just .02 percent breath alcohol. A single beer could cause an average-sized young man to reach this level. Thus, the refusal to submit to the breath test would have been significant evidence.
On the other hand, no witness could clearly establish that J.W.B. had imbibed in an alcoholic beverage before the car became inoperable. Deputy Lamborghini claimed that the Defendant had admitted having had a “drink” at a club earlier in the evening. However, there was no independent proof that J.W.B. was referring to an alcoholic drink when he used the phrase.
Under these circumstances, the charge was reduced to reckless driving on October 28, 2009, before County Judge Clifford H. Barnes.
A couple of lessons may be learned from this case:
- Actual physical control is an essential element of the offense of DUI. Some persons think that they can sit in a car listening to music in their yard or a parking lot without being at risk for a DUI arrest. This would be false. A person can be arrested for DUI, even if the car is parked, and the engine is off – as long as the person has the capability of driving the vehicle. The determining factor is usually possession of a key to the car.
- 2. Inoperability of the vehicle is an affirmative defense. In other words, the person accused of DUI has the burden of establishing that the vehicle could not be driven. The accused must also establish that they were not impaired before the vehicle became inoperable. In J.W.B.’s case, the car became inoperable due to a fuel cut-off switch which was activated by a blown out tire. It should be remembered that a jury does not have to believe that the vehicle was inoperable, nor that the individual started drinking after the vehicle became inoperable.
Any person faced with these circumstances should consult with an attorney experienced in these types of DUI cases.