hello hi how are you good how are you I'm not doing the best but no I'm okay I just left work and this is my house right here but I lost my ID okay where's work at OCC OCC Orange County Traffic School okay alright and you went straight from there to here yeah okay the reason I'm here is people were calling 9 1 1 about your driving saying that they were concerned about you and that you were swerving and driving erratically and then when I was behind you're here just kind of looking for my spin your wheels trying to make the turn yeah I was just looking for my cause it's easily attached to you looking for your ID yeah I was look my wallet everything is attached to that usually and I can't find it so I'm stressed out about it okay what were you doing in the Publix parking lot you just pulled into Publix and drove through the parking lot on my way back from OCC yeah how come you did that looking to I stopped to look for this because I was like oh no and I was trying to okay you can see my phone so I open my door you can see my phone I 5 19 to 5 92 it's I tried to call my work to see okay alright how much we had to drink today nothing nothing no we take any medication no we take anything illegal no any reason why you kind of seem out of it just other than your lost wallet yeah OK alright do you mind just stepping out of the truck for me please OK we're just gonna step over here OK so you just you're kind of having a problem walking right there I'm not I was just you asked me to step out yeah then you just tripped over your own feet right here you spun your wheels making the turn when I was behind you you seem you don't seem sober to me if I'm gonna be honest with you so all of that coupled with the fact that people are calling 911 about you drive that's the whole reason I'm looking for you I understand and that's not people said that you were swerving and having a hard and then like I said you spun your wheels I was looking at my phone the entire time because as you see oops OK are you sure you haven't taken anything I'm positive I haven't taken anything I don't legal or illegal no I used to smoke a lot of pot but I don't do that anymore no vapes nothing like that I don't even no I don't OK alright do you feel comfortable to be driving I do yeah yeah OK alright OK alright well what's gonna happen is we have another officer on the way and when they get here OK we are gonna ask that you complete field sobriety evaluations OK OK for the purpose of determining if you possess the faculties necessary to safely operate a vehicle OK yeah alright how long did you work at OCC today 5 hours okay and now you're heading home right here gonna miss the Friday night shift no I I would preferably miss that one hahaha too busy or the crowd that comes in or what well tonight actually is we're going to start doing um the younger crowd comes in for um uh what do we do it it's not fun you are bartender server what are you doing no I just work in the front I just do the um I give people their tags to go into the shop OK have you been there yeah I mean I I work in the city yeah yeah yeah they've got the dealership and then the restaurant there they do a lot of yeah the Harley um Berts yeah they do a lot of events and stuff there I never work Thursday nights which is yeah you know bike night with how long have you worked there four almost four months what'd you do before then I didn't live here I'm from DC from DC OK how'd you end up down here from DC my ex husband moved down here and our children okay we're trying to be very cool with it you know I got you do you have any physical ailments like broken bones limps anything like that no at all and do you have any I know you said you haven't taken anything but do you have any prescription medication that you're supposed to take that you haven't taken today no OK are you diabetic at all no OK yep they're here um found her here she was pulling in uh she squealed her wheels trying to make the left hand turn into here um and speaking with her said she's heading home from OCC and the reason for her driving pattern was she lost her wallet and she was looking at her phone and uh got a little difficult to get out of the car tripped over her own feet get out of the car denies alcohol denies any drugs licit or illicit I've explained to her that uh field sobriety evaluations will probably you asked of her but I was gonna let you talk with her and do your thing so uh I didn't obviously heard what he said but what's going on why why are no so I I left work I'm coming home my wallet was attached to the back of this OK I was stressed out trying to look for it cause I literally he saw me I stopped at the grocery store at Publix I went to go in and I had nothing to pay with okay alright I don't know where I don't know where I lost it but I lost it somewhere alright do you think you're good to drive right now I do feel like I'm good to drive right now and this is my home right here okay I got you um how much have you had to drink I haven't had you've had nothing to drink I can smell it you've had nothing I haven't no none whatsoever not earlier in the day no OK um you take prescriptions I don't no so nothing that would impair you nothing that would cause you to drive erratically or reckless or no people just me looking at my phone OK why can I smell it then I don't know because I haven't okay alright um can I check your eyes real quick yeah do you mind stepping over here for me sure alright if you don't mind staying with your toes and your heels touching your arms on by side do you want to put your phone down here I'll put it in the truck so it doesn't get lost just stay with your toes and your heels touching your arms on by side do you wear contacts I don't OK are you sick no are you injured no do you have any physical defects I do not OK do you see the blue light what I'd like for you to do is follow the light with your eyes and your eyes only I don't want you to move your head at all do you understand I understand do you have any questions for me no OK don't move your head OK keep straight up your head for me I'm gonna head off don't anticipate the light as it moves I want you to follow it I understand keep following keep looking the whole time okay sorry it's a little awkward okay OK it's gonna go a little slower this time OK why is this so weird I don't know okay it's gonna go up and down this time right alright I'm gonna make a couple circles around your face and bring it towards your nose I want you just to keep following the light for me okay okay I'm gonna ask that you continue with the series of evaluations is that something you'll do for me yeah that's what you need me to do alright give me one second I'm gonna get some duct tape and uh we'll go from there yeah a good one we're probably gonna go down I'm gonna move yeah you ever had to do anything like this before absolutely not that's why it's funny to me that's a good thing I'm sorry I'm not I'm not trying to laugh it's just no I understand yeah what's happening well what's happening is essentially you're suspected of DUI right now okay and these evaluations are used to help us determine whether you are DUI or not whether you possess the faculties necessary to safely operate a vehicle so if you complete the evaluations to standard and you dispel our alarm and show us that yes I'm I have the faculties necessary to safely operate a vehicle then we'll be done here and we'll uh we'll be on our way sounds good to me he'll explain everything to you and demonstrate it make sure you understand it before you attempt it alright and if you have any questions feel free to ask we want to make sure you completely understand it I appreciate all your information you're welcome absolutely absolutely Jaya Jaya do you mind walking down the stairs with me yep this is a walking violation of the shoes policy comfortable but I'm gonna give you the options of whether you prefer to wear them or take them off I like my shoes you would like to wear them okay alright so what I'm gonna ask that you do is place your left foot on that line for me yep with your right foot in front heel touching toe like you nope just like stand in front of the line just place your left foot on that line with your right foot in front heel touching toe to take a step back do you see that line in front of you yeah put your left foot on the line see what I said I said left foot first OK left foot on the line right foot in front of your left foot heel touching toe OK put your arms on both sides and just like that like I am OK I want you to stay just like that for me OK when I tell you to I want you to take nine heel to toe steps down the line nine yes ma'am you're then gonna turn in a manner which I'll describe and demonstrate and you'll take nine more heel to toe steps back down the line I'mma watch and turn yes ma'am OK so I'm gonna pivot a little bit if you don't mind standing in that starting position for me okay so it's gonna look like this counting each step out loud one two three and so on until you reach 9 right once you reach 9 I want you to leave your front foot planted on that line step off with your rear foot turn using a series of small steps to return back down the line again I'm sorry when I get to the end I turn I pivot you're not gonna pivot you turn just like I demonstrated so you leave your front foot on that line okay step off with your rear foot okay turn using a series of small steps and then return back down the line okay can you stand back in that starting position for me yes okay and then return back down the line counting each step out loud one two three and so on until you've reached nine do you understand that yes sir do you have any questions for me absolutely not OK alright ready no not yet so while you're doing this evaluation I want you to look down at your feet count each step out loud I don't want you to stop once you begin and I don't want you to use your arms for balance OK do you understand yeah do you have any questions for me so when I go off balance I just fall I don't want you to use my arms I don't want you to fall I understand but I okay I don't want for you to use your arms 1 2 3 4 5 6 7 8 9 okay do you have any questions for me no sir do you understand everything I understand okay can you get back into that starting position for me with your right foot in front heel touching toe I thought you said left right left foot on the line right foot in front heel touching toe okay alright whenever you're ready if your arms down by your side you may begin all the way down by your side 1 2 3 4 5 6 7 8 9 you told me to do a weird pivot and do it back just as I demonstrated for you I don't remember 1 2 3 4 5 6 7 8 9 alright so for the next evaluation we're gonna disregard this line what I'm gonna ask you to do is stand with your toes and your heels touching yeah your arms down by your side for me okay for this one what I'm gonna ask you to do is elevate either your left or your right leg approximately 6 inches above the ground or about the size of a Coke elevate my right leg right or left leg it's up to you it doesn't matter OK correct alright so you're gonna keep your foot parallel to the ground OK gonna point your toes just just stand there for me no just stand there just stand there like this like I had you before thank you alright so you're gonna keep your foot parallel to the ground yeah point your toes and look down at your foot keep your legs no just just keep your leg up just listen for right now okay keeping your leg straight you're gonna look down at your foot and count in the manner one thousand one 1 thousand two 1,003 and so on until I tell you to stop do you understand yes sir I understand do you have any questions for me no sir okay give me one second which foot are you gonna raise right alright whenever you're ready you may begin keep your arms down by your side 1001 1002 oh Jesus 1003 can I start over just keep going take your foot back up for me 1000 one 1000 two 1003 1004 1006 1007 1008 1009 thousand ten since over OK 1,011 1,012 you can go inside okay for the next evaluation what I'm gonna have you do is stand again with your toes and heels touching your arms down by your side for me okay for this one aren't there easier ways to go about this I'm sorry sir this is exactly how we do it okay so I'm gonna ask you to stand toes and heels touching your arms down by your side yes okay for this evaluation what I'm gonna ask when I tell you to begin is for you to close your eyes and tilt your head backwards if you're looking up towards the sky okay okay I'll give you a command to be the left or right okay you'll then use the respective tip of your index finger to touch the tip of your nose and then return your arm back down your side without me it doesn't matter which arm no I'm gonna tell you left or right okay then you'll use that respectively okay okay do you have any questions for me absolutely not sir do you understand everything yes sir okay we'll repeat that process several times okay okay alright uh silly question but do you know the difference between your left and right yes sir okay go and close your eyes tilt your head backwards for me okay make two fists and leave your arms down by your side point your index fingers out face your palms towards me touch your head backwards for me left don't forget to touch the tip of your nose oh this is so weird right right right left and put your hands behind your back for me you're being placed under arrest for driving under the influence okay even though I didn't even do anything well you drove under the influence there's anything illegal inside your vehicle I need to know about any knives weapons guns drugs that body is hanging interesting hair charms though it's Florida okay alright do you have anything on you that's gonna poke me or hurt me no anything on you not supposed to have I'd rather know now absolutely not ma'am okay um I just stand here face the car feet feet apart what I don't know funds I don't know funds the one because literally I is there anything in this little pocket sir let's go let's go we're gonna walk around here to my car we're gonna head back to the performance that's something you'll do for me is that something you're gonna do for me you're not answering me now is that it you're just not gonna answer and you flip the seatbelt what get out no I was trying to put my shoes on that's it no we're done I was trying to put my shoes on that was the only thing I was ever trying to do just turn your face around just trying to put my shoes on okay stop what if you pull away like that you can't I can't put my shoes on stop talking for one second I was only trying to put my shoes on stop walking away you're gonna end up with another I was not walking away I was putting my shoes on my one shoe I got one shoe stop it don't stop texting him stop that's not gonna end well for you stop don't scratch me either I'm not scratching you at all you're gonna have another charge have I scratched at all I have yes where did I scratch I did not scratch all I did was not you just scratched me again stop I didn't oh my God my nails are like locked in now and I'm not scratching like at all stop I'm not scratching stop now you're you're getting charged you wanna get taste do you wanna get taste I am not scratching stop I'm not scratching your finger yeah I'm not anybody I'm not doing anything you're you're in charge of that Leo of what of battery on a law enforcement officer you understand that but I literally did not hurt you guys all I did first off you don't know that that's okay huh okay those aren't getting loose in between your hair I literally saw come back walk this way I did not no you're gonna drag you inside you're literally telling me that hey listen one opportunity telling me that I'm going you're going to press charges on me that I haven't done so why the fuck would I go stop you're making it worse he's telling me that he's gonna press charges on me that I haven't done why would I why the fuck would I go with him you're going with me now how about that stop we'll drag you inside I know you already already will let's go I already know you will cause you always do always this is a routine thing for you no have a seat have a seat you have one one chance one chance of what then we're gonna go straight to jail sit stop I'm already in jail you yes I am you've already taken me here on contrary we are not at jail in the same right we're taking you there are you not yes you will eventually be going to jail right so what sit down chance sit down I know why sit down or you're or you're going to take me to jail like you're already gonna do sit down like you're already gonna do Jaya Jaya sit down stop you're making it worse I know for fun sit don't you love for fun your job is will you more will you submit to a breath test don't you love when your job is more exciting this isn't exciting this isn't exciting Jaya I'm requesting that you submit to an approved test of your breath for the purpose of determining the alcohol content of your breath cool do you understand what you and I what I just read to you am disagreeing okay will you take the test no okay if you refuse to take this test your driving privilege will be suspended for a period of one year for your first refusal or 18 months if your driving privilege has been previously suspended first using to submit it's never been tested ever so if you've had your license or if you've been previously found in a Florida statute 3 2 7 point three five two one five for refusal to submit to a lawful test can I have my other shoe also if you've had your license previously suspended for refusing to submit to a lawful test of your breath or urine you will commit a misdemeanor by refusing to submit to the breath or urine test requested of you today your refusal to submit to this test is admissible in evidence in any criminal proceeding you understand refusing to take this test will cause I understand refusing will cause the suspension of your driving privilege for a minimum period I understand refusing and that your refusal can be used against you in court absolutely absolutely yes is that portable it is portable and you still refuse to take the test yes sir absolutely sir is that better she passed every field sobriety test calmly she denied drinking she had an explanation for everything and then she refused the breathalyzer what happened next turned a traffic stop into a multi count felony case the law did not care about her explanation here is why legal issue 1 reasonable suspicion and probable cause The Fourth Amendment requires reasonable articulable suspicion before a traffic stop here multiple independent 911 callers reported active erratic driving and the officer personally observed wheel spinning during a left hand turn that combination satisfied reasonable suspicion before the officer said a single word to the driver Illinois v Gates 462 US 213 1,983 probable cause is assessed under the totality of circumstances not each factor in isolation every indicator stacks 911 calls plus officer observation plus odor of alcohol plus FSE results equals probable cause no single element needs to stand alone legal issue two pre arrest questioning burkimer v Mccarty 468 US 420 984 a routine traffic stop is not custodial interrogation Miranda does not apply officers may ask questions including whether the driver has been drinking without advisements the driver's denials is legally unprotected and fully admissible silence would have been smarter denial was not Legal Issue 3 DUI Statute Florida Statute 316.193 DUI established when a driver operates a vehicle while normal faculties are impaired by alcohol or a controlled substance normal faculties include walking seeing judging distances and operating a vehicle no specific back is required observed impairment alone documented by a trained officer satisfies the statute legal issue four field sobriety evaluations not to validate three standardized tests horizontal gaze nystagmus walk and turn and one leg stand combined accuracy Approximately 91% HGN alone checks six clues four more correlate with B's at or above 0.1 officers must demonstrate instruct and document specific clues not general impressions protocol failure opens the door to suppression at trial legal Issue 5 implied consent and Breathalyzer Refusal Florida Statute 306 and 16.1932 by holding a Florida driver license a driver has already consented in advance to chemical testing following a lawful DUI arrest first refusal one year administrative license suspension second refusal first degree misdemeanor both are processed independently of the criminal case South Dakota v Neville 459 US 553 1 983 a driver's refusal to submit to a breath test is admissible in criminal proceedings as circumstantial evidence of consciousness of guilt Birchfield v North Dakota 579 US 438 2016 breath test incident to lawful arrest require no separate warrant refusing did not protect her it became evidence against her legal issue 6 physical resistance and battery Florida Statute 784.07 battery on a law enforcement officer engaged in lawful duties is a third degree felony carrying up to five years in prison and a 5 thousand dollar fine intent to injure is not required intentional touching that causes harm or offensive contact is sufficient whether the fingernail contact was deliberate or accidental became a question for the court not the officer Florida Statute 843.01 resisting an officer through violence or by offering violence is a third degree felony Pennsylvania v Mims 434 U S hundred and six 977 officers may order a driver from a lawfully stopped vehicle and may execute a lawful arrest regardless of the subject's agreement verbal objection is a right physical resistance is a felony grades Officer Performance Primary Officer B+ reasonable suspicion was documented before first contact DUI screening questions were complete and professionally delivered inter officer briefing was thorough and organized deduction pre evaluation physical observations were referenced verbally but not formally documented precise notation of observations before Fses reduces vulnerability at trial Secondary Officer B+ HGN walk and turn 1 leg stand and finger to nose were administered with demonstrations and instructions consistent with NHS protocol odor of alcohol was directly communicated implied consent advisory was read verbatim and from memory protecting evidentiary integrity deduction overlapping simultaneous commands during arrest resistance reduce compliance efficiency calm singular commands produce faster responses subject d cooperated fully during field sobriety evaluations did not flee completed all tests without mid evaluation refusal these are credits however admitted phone use while driving confirming a separate traffic offense continued denying alcohol consumption while a trained officer detected the odor at close range the denial carried no legal Protection and destroyed credibility before the formal evaluation began the breathalyzer refusal as a defense strategy requires weak surrounding evidence to justify the trade off here independent evidence was already substantial before any chemical test was requested 911 calls officer observations documented odor and Fe results refusing added admissible evidence against her without removing a single piece of evidence already in the record the strategy failed on the facts key legal lessons first every legal right has a cost benefit calculation refusal is a right but exercising it when the surrounding evidence is already overwhelming converts a right into additional prosecution evidence second physical resistance during a lawful arrest does not challenge the arrest it creates new felony exposure the correct challenge is legal not physical and it happens in court not at the scene third pre evaluation verbal admissions are fully admissible anything said during a roadside stop before arrest is not protected by Miranda fourth FSE documentation protocol is not optional improperly administered or undocumented evaluations can be challenged and suppressed the 91% accuracy figure assumes strict and not so protocol compliance at every step I come convicted of DUI under Florida Statute 316.193 and resisting arrest sentence 12 months probation 50 hours community service six month driver license suspension six months ignition interlock device the interlock requires a clean breath sample before the vehicle starts both convictions are permanent on her criminal record the battery charge appears resolved in plea negotiations the resisting charge was not one question remains open Graham v Connor 490 US 386 1,989 requires force to be evaluated from the perspective of a reasonable officer at the moment of decision not in hindsight the scratch allegation during handcuffing was disputed she said it was accidental the officer said otherwise under 784.07 that distinction determined whether she faced an additional felony count which version did the court accept and why a 26 minute traffic stop four field sobriety evaluations two officers graded B+ one driver graded D a breathalyzer refusal that became prosecution evidence a physical struggle that added a felony charge and a conviction on multiple counts every decision point in this encounter had a legal consequence which one decision if changed would have produced a different outcome stay with us