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Chapter 1 – 1.12 Other Offenses

CRIMINAL LAW

 

1.12 Other Offenses

 

A. Disorderly Intoxication

 

                While an individual may not be charged with alcoholism or his status as an alcoholic, he may be charged in the State of Florida with disorderly intoxication. The statute provides as follows:

 

                (1)           No person in the state shall be intoxicated and en­danger the safety of another person or property, and no person in the state shall be intoxicated or drink any alco­holic beverage in a public place or in or upon any public conveyance and cause a public disturbance.

                (2)           Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in S.775.082 or S.775.083.

                (3)           Any person who shall have been convicted or have forfeited collateral under the provisions of subsection (1) three times in the preceding twelve months shall be deemed a habitual offender and may be committed by the court to an appropriate treatment resource for a period of not more than sixty days. Any peace officer, in lieu of incar­cerating an intoxicated person for violation of subsec­tion (1) may take or send the intoxicated person to his home or to a public or private health facility, and the law enforcement officer may take reasonable measures to ascertain the commercial transportation used for such purposes is paid for by such person in advance. Any law enforcement officers so acting shall be considered as car­rying out their official duty.

 

                It can be seen by the reading of the above statute that the Flor­ida legislature has taken the position that police agencies should treat individuals who are drunk as sick persons rather than as criminals whenever that is possible.

 

B. Loitering

 

                It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under cir­cumstances that warrant a justifiable and reasonable alarm or immed­iate concern for the safety of persons or property in the vicinity.

 

                Among the circumstances which may be considered in deter­mining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforce­ment officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the per­son an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the ex­planation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.

                Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provid­ed in §775.082 or §775.083.

 

C. Driving While Under the Influence

 

                It is unlawful for any person, while in an intoxicated condi­tion or under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties, to drive or operate any vessel, automobile, truck, vehicle, motorcycle, or any other vehicle pro­pelled by gasoline, gas, vapor, electricity, steam or other power, on public or private property.

                If, however, damage to property or person of another, other than damage resulting in death of any person, is done by said intoxi­cated person under the influence of intoxicating liquor to such ex­tent as to deprive him of full possession of his normal faculties, by reason of the operation of any of said vehicles mentioned herein, he shall upon conviction be fined not more than five hundred dollars, and also be imprisoned not less than three months nor more than twelve months, and if the death of any human being be caused by the operation of a motor vehicle by any person while intoxicated, such person shall be deemed guilty of manslaughter, and on convic­tion be punished as provided by existing law relating to manslaugh­ter.

                The Florida Statutes provide under the terms of the implied con­sent law that an individual, by requesting a license to drive, furnishes his consent to submit to a chemical analysis upon request. The most common form of chemical analysis offered to drivers, is the Intoxilyzer. In State v. Bender, 382 So. 2d 697 (Fla. 1980), the Supreme Court of Florida upheld the constitutionality of that law. Substantial compliance with licensing of officers and maintenance of the intoxilyzer is mandated.  Fines, community service, license suspension, abuse counselling and impoundment of vehicles, as well as jail are possible penalties upon conviction of DUI.  Penalties increase for subsequent convictions.

                A blood alcohol level of .08 or higher at the time of the ques­tioned driving, raises a presumption that the person's normal faculties were impaired .

                In the case of State v. Duke, 378 So. 2d 96 (Fla. 2d DCA 1979), the Second District Court of Appeal held that the refusal to submit to such a sci­entific test is admissible in evidence against a defendant, but, only if such a test is both admissible and compulsory. The Court concluded that the Florida Implied Consent Law is compulsory and thus if prop­erly offered, permits the introduction of the driver's refusal.

                In McDonald v. State, 364 So. 2d 1241 (Fla. 2d DCA 1978), the Second Dis­trict ruled that a person who is offered a chemical test and refuses same, shall not have the results of the tests, forcefully administered, introduced against him. The Implied Consent Law provides for a pen­alty when a driver refuses the test. That penalty involves a manda­tory suspension of the driver's privileges. When there is a refusal the test may not be forcefully administered and the results admitted against the defendant.

                In Taylor v. State, 18 Fla. Law Weekly Supp. D2233 (Fla. App. 4 DCA 1993) the court held that a pre arrest field sobriety test is not compulsory, and that therefore a defendant's refusal to submit to such test is not necessarily relevant evidence of consciousness of guilt.  Due to the importance of the issue in DUI prosecutions, the question was certified to the Florida Supreme Court for a definitive ruling.

                In State v. Demoya, 380 So. 2d 505 (Fla. 3d DCA 1980) it was held that the implied consent law applies only to alcohol, and not to other substances in the body.  Police cannot exceed the scope of implied consent by requesting additional chemical testing without basis.  Implied Consent can nonetheless apply to controlled substances other than alcohol if there is probable cause to believe the person is under the influence of such a substance.

                Due to questions involving double jeopardy, discussed later, of­ficers investigating traffic accidents in which there has been a death, or it reasonably appears that one of the persons involved might die, and alcohol impairment is suspected, should refrain from filing any traffic charges until discussing the case with the prosecutor.

                Florida provides for seizure of a driver's license upon arrest and mandatory sentencing procedures for first and subsequent offenders. Further, refusal to submit to a blood test upon request of the law enforcement officer is admissible in evidence in any criminal proceeding. In addition, the law provides for the driv­er's implied consent to a test for drugs (urinalysis). Urine tests are treated the same as breath tests where the influence of drugs is sus­pected.

                In California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984), the U.S. Supreme Court ruled that the Fourteenth Amendment's Due Process Clause does not require state law enforcement agencies to preserve, for drunk driving suspects' use at trial, breath samples of suspects tested on an instrument that ana­lyzes breath-alcohol level.

                In Miller v. State, 16 FLW S 627 (Fla. 1991) the Supreme Court of Florida upheld the introduction of a blood alcohol level test taken after arrest, where experts would have testified that that would not have been the level of alcohol in the blood at the time the defendant was in control of the vehicle, and that the level could well have been below .10.  The Court ruled that such a test can be probative and relevant.  The inability of the state to "relate back" blood alcohol evidence is a question of weight and credibility for the jury to decide.

                In Haas v.State, 17 FLW S 181 (Fla. 1992), the Florida Supreme Court in ruling in a DUI Manslaughter case, that evidence of a blood alcohol level of .11 taken after the accident is sufficient circumstantial evidence to sustain a conviction.  Failure to extrapolate back does not make the test inadmissible.  The test is prima facie evidence that the accused had the same blood alcohol level at the time of the accident.  The defendant can cross examine or impeach, but it is an issue of weight and credibility.  The test must be administered within a "reasonable" period of time of the driving.

                The result of these two cases is that no relation back is required in either a DUI or DUBAL based case, so long as the test taken is valid, and was given within a reasonable period of time after driving.

                Appellate decisions in Florida presently recognize that while Florida Statutes provide the arrestee with the right to obtain an independent BAL test at his or her own expense, the State has no affirmative duty to provide, or to facilitate such a test upon request.  However, a showing that the State is acting in bad faith, or engaging in active wrongdoing to thwart such a test, can result in the suppression of the State's test.  See State v. Durkee and Weier,584 So. 2d 1080 (Fla. 5th DCA 1991).  Although law enforcement does not have to provide an arrestee with a blood test, pursuant to Unruh v. State, 669 So. 2d 242 (Fla. 1996), law enforcement has to render reasonable assistance to an arrestee who has requested an independent blood test.  What is “reasonable assistance” depends upon the circumstances and subsequent case law has shown that the obligation may be satisfied under some circumstances by simply furnishing the arrestee with a phonebook and telephone.

                The use of roadblocks to apprehend drinking drivers has of course been approved by the United States Supreme Court.  As long as the police comply with the directives of that Court, Florida will also permit such a technique.  One element required is that the detention of drivers stopped by police at such roadblocks be minimal.  InCahill v. State, 17 FLW D 689 (Fla. 4th DCA 1992), it was held that a delay of four minutes as the driver was asked to get out of the car was acceptable.  See Michigan State Police v. Sitz, 496 U.S.,

110 S.Ct. 2481, 110 L.Ed. 2d 412 (1990).

 

D. Escape By Negligence

 

                If a police officer or jailer, through negligence, allows a person in his custody, who has been convicted of any criminal charge, to escape, he is guilty of a misdemeanor of the first degree.

 

E.  Alcohol and Tobacco Laws

 

                Florida taxes and regulates both alcohol and tobacco products.  In addition there are stringent licensing requirements associated with the sale of alcohol.  Police officers have the authority and duty to inspect licensed premises to assure themselves that the law relating to sale of alcoholic beverages is being observed on the premises. The nature of the sale (by drink or package, for consumption on or off premises), and the sale to underage persons (21) should be checked.

                Loss of revenue through sale and distribution of untaxed products costs the state millions of dollars in revenue each year.  Officers have a right to check stock to be sure it is properly taxed.  Establishments may become public nuisances as a result of repeated violations of the law, and action may be initiated to close the business.

                The Division of Alcoholic Beverages and Tobacco operates within the Department of Business Regulation. Investigators from this division routinely inspect licensed establishments, and should be advised of problems and repeat offenders.  See Florida Statutes, 562; and 859.

                The philosophy of enforcement recognizes that licensing is a privilege, not a right, and that the owner of a licensed establishment is responsible for the acts of employees.