Can I Get a DUI Sleeping in a Car?

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

In a word, Yes

All that is required for the State to obtain a Driving Under the Influence conviction is for the prosecutor to prove that you (1) were driving or in actual physical control of a vehicle and that you (2) were under the influence of alcohol or drugs to the extent that your normal faculties were impaired. Florida courts have interpreted “actual physical control” to include instances of sleeping in a vehicle when the vehicle is running or the keys are so accessible that only a flick of the wrist is required to start the car.

As such, as always, don’t drink and drive. However, should one have made the decision to drink and drive and subsequently realized he or she should not be driving, it is always a good idea to get off the road and park in a safe location. But this is where additional precautions need to be taken to avoid a DUI even after you’ve removed yourself from the road.

What to do if you’re sleeping in a car

First, park safely and legally. You don’t want to draw any attention to your vehicle from law enforcement. An illegally parked vehicle may give the officer an excuse to approach your vehicle and/or ask you to move your vehicle. Obviously, any encounter with law enforcement after you’ve been drinking brings with it the possibility of a DUI investigation. You also want to park in a well-lit environment so that unsavory characters are not tempted to take advantage or your sleep to rob or burglarize you or your vehicle. 

Second, and this is the hardest part, remove your keys or key fob from your person. Most folks prefer to sleep in a vehicle with it running so that the air conditioning or heat can be on for a more comfortable environment. However, this puts you in actual physical control of the vehicle. Put your keys in the trunk of the vehicle or someplace outside of the vehicle where you can obtain them after you awake. While you may lose your keys or have to rely on someone bringing your spare to you later, the State will be unable to prove a DUI.

If law enforcement is at my window, do I have to roll it down?

Even if you’ve taken each of the above-referenced precautions, you may still have a cop rapping at your window attempting to rouse you out of your slumber. Assuming that you are parked legally and otherwise not committing a criminal or traffic violation, you can simply acknowledge them through the window, roll back over and continue your slumber. Especially if you’ve been drinking, you do not want to open that window and you are not required to do so.

In State v. Brown, 26 Fla. L. Weekly Supp. 605b (Fla. Brevard Cty. Ct. 2018), Mr. Brown was sleeping in his vehicle, with it running, and a law enforcement officer approached and rapped on his window. Mr. Brown raised his head slightly and rotated his body away from the window. Undeterred, the officer recruited a firetruck to sound its airhorn. Upon the sounding, Mr. Brown rolled down his window and engaged with the officer. The officer smelled the odor of an alcoholic beverage, began a DUI investigation, and subsequently arrested Mr. Brown. 

The trial judge held that the welfare check / investigation was illegal at the point the cop forced Mr. Brown to engage with him by using the airhorn. The court reasoned that any concern for Mr. Brown’s well-being was alleviated when he rolled over. Had there been additional evidence of a potential medical issue (unresponsive to tapping or irregular behavior after tapping), the continued investigation would have been justified.

The point being that you don’t have to engage with law enforcement. However, had Mr. Brown taken the steps outlined above, even had he voluntarily engaged, he still could not have been convicted.

Need Help with Your DUI

Call DUI lawyer Adam Bantner and Hillsborough County law firm The Bantner Firm today to set up your free DUI consultation at 813.397.3965. We’d love to help you out!

Judges Get This One Wrong All The Time!

An Excited Utterance Can Be Admissible Even When Self-Serving

By Adam L. Bantner, II

During the course of a criminal trial it is not unfamiliar for a judge to sustain an hearsay objection whenever the hearsay statement is that of the person on trial. This is true even when the statement qualifies for admission under an exception to the hearsay rule. The common refrain from the prosecutor is, “But judge, it’s self-serving. Self-serving hearsay is inadmissible.” This can be enough to persuade the judge. 

However, criminal defense attorneys have a new case with which to arm themselves against this wrong line of thinking. The Fourth District Court of Appeal in Hinck v. State, 43 Fla. L. Weekly D2681c (Fla. 4th DCA 2018) held that so long as the particular requirements of the exception are met, in this case it was an excited utterance, the self-serving nature of the statement will not automatically preclude its admission into evidence; it is but one consideration.

The Excited Utterance Hearsay Exception

Fla. Stat. 90.803(2) allows for the admission of an “excited utterance” when the following criteria is met: [T]he statement must be made: (1) regarding an event startling enough to cause nervous excitement; (2) before there was time to contrive or misrepresent; and (3) while the person was under the stress or excitement caused by the event. Hayward v. State, 24 So.3d 17 (Fla. 2009). Conspicuously absent is any requirement that the statement not benefit the defendant if the statement is his. 

The confusion comes from the courts’ ability to blend the requirements for the admission of a spontaneous statement and excited utterance. It shouldn’t be done, but an element for the admission of a spontaneous statement is it not be made under circumstances which indicate its lack of trustworthiness. Obviously, you don’t want unreliable evidence to be admitted; but the fact that a person is under the stress or excitement of a startling event is exactly what gives an excited utterance its trustworthiness. If the statement is fabricated, then its not being made under stress or excitement. As such, this requirement is unnecessary for an excited utterance to be admitted. 

State v. Hinck

In this case, Hinck had stabbed a man with whom he met online for a casual sexual encounter. Hinck claimed that he had a change of heart about going through with the act and that the victim of the stabbing had tried to force himself upon Hinck. Hinck claimed to have responded in self defense by using his knife.

Upon coming down the stairs from the hotel room, Hinck stated to the hotel attendant, “I’ve been attacked; I stabbed someone.” This is the statement to which the state objected. The trial court sustained that objected and Hinck was ultimately convicted. 

However, the appellate court reversed the conviction because the statement should have been admitted and such error was not harmless.

Call The Bantner Firm

If you find yourself or someone you love facing a serious felony allegation, you need an attorney who knows his way around the courtroom. Adam Bantner is a board certified criminal trial law attorney helping the accused in Hillsborough County. Call us today for your free consultation. 813.397.3965.

Not All Vehicles Are Treated Equally

Scooter Accidents

We all know that motorized scooters are great for getting around college campuses such as USF, University of Tampa, or Hillsborough Community College. However, they can be dangerous as they offer little protection for the driver of the vehicle. That danger is further exacerbated when a scooter is taken onto a major thoroughfare such as an interstate like I-75, I-4 or I-275. One collision with a vehicle moving 65-75 MPH and the scooter’s driver is not likely to survive.

Scooter Use on a Highway

The law is pretty clear with regards to scooters and highways: unless they can keep up with the flow of traffic, they should not be used upon such roadways. 

Fla. Stat. 316.091(2) states: “No person shall operate upon a limited access facility [essentially a highway] any bicycle, motor-driven cycle, animal-drawn vehicle, or any other vehicle which by its design or condition is incompatible with the safe and expedient movement of traffic.” 

The key phrase is, of course, “incompatible with the safe and expedient movement of traffic.” In other words, if you can’t go fast enough to not impede traffic, you shouldn’t be on the highway.

What It Means in Court

In a Florida personal injury action, fault can be apportioned by the jury amongst the tortfeasor (the at-fault party) and the victim of the accident. The victim’s recovery will be reduced by his percentage of fault. To keep things simple, if a jury awards $1 million in damages but thinks the victim is 50% to blame, the victim will only recover $500 thousand. 

In Araj v. Renfro, 43 Fla. Law Weekly D2674c (Fla. 5th DCA 2018), the Court reversed and remanded for a  new trial a case where the jury awarded $6 million to the driver of a scooter who was killed in a traffic accident. The jury 25% at fault and his award was likewise reduced by that amount.

However, this case was reversed because the DCA held that the jury should have been instructed on Fla. Stat. 316.091(2) regarding the illegality of driving a scooter that can’t keep up on a highway. The court reasoned that had they been so instructed, the jury may have further reduced the award of damages. 

Having a Skilled Accident Attorney Matters

As you can see from above, injury law can be complicated.  A person’s family in a wrongful death action won’t necessarily recover damages simply because they family member was killed by the negligence of another driver. In considering whether to settle a case or to push it to trial, your attorney must be aware, and make you aware, of the bad with the good. 

Call The Bantner Firm today to discuss your wrongful death action at 813.397.3965. We’d love to help you out!