foreign [Music] welcome to audit the audit where we sort out the who and what and the right and wrong of police interactions this episode covers DUI laws field sobriety tests and Plain View searches and is brought To Us by behind the mugshots Channel be sure to check out the description below and give them the credit that they deserve on February 12 2021 officer Katie proffer of the University of Central Florida Police Department approached 19 year old UCF student Sophia who was sitting inside her vehicle in a parking lot in Orlando Florida officer profer immediately asks Ms Sophia whether she has been drinking and begins a DUI investigation hello yeah honestly I just fell asleep okay have you been drinking honestly okay where'd you come from um just came from the house party and we figured it was safer to sit here we were dropped off and I didn't feel comfortable driving so we were sitting in my car okay and I didn't want to drive okay do you look you guys both live here or I don't live here so how'd you get here um we were dropped off by an Uber okay and you just got in your car yes ma'am so your car was sitting here okay have you guys been smoking weed at all too ma'am don't do drugs all right we just have two other drinks open here so this is that is a monster a monster I'm so sorry we don't have any open containers in the car okay we just have a Celsius and a monster they're just yeah we don't have anything open in the car I just didn't want to drive intoxicated so we're just sitting in the car okay you're so you're both students okay did you get did he get your IDs and stuff already okay all right um thank you yeah hang on one second for me so yeah I can smell either too so since they are parked here can you still get them for because they're behind the wheels operating operating all right okay what is your name again my name is Sophia Sophia okay I want to have you if you don't mind to step out of the vehicle and talk to me behind the car for a bit I want to drive we can just stand right there that's fine you're okay for driving Under the Influence you're all you have to be is up here in the driver's seat so you're in control have an operating motor vehicle yes ma'am so it's still illegal to be sitting in the driver's seat with you drinking okay Officer proffer claims that it is illegal for an intoxicated individual to sit in the driver's seat of a vehicle even if they do not drive under section 316.193 of the Florida Statutes an individual is guilty of driving Under the Influence if they are quote driving or in actual physical control of a vehicle while now quoting again under the influence of alcoholic beverages or any chemical substance or controlled substance when affected to the extent that the person's normal faculties are impaired the person has a blood alcohol level of 0.08 or more or the person has a breath alcohol level of 0.08 or more likewise there is an additional statute for individuals under 21 found in section 322.2616 of the Florida Statutes which provides that quote it is unlawful for a person under the age of 21 who has a blood alcohol or breath alcohol level of 0.02 or higher to drive or be an actual physical control of a motor vehicle according to the Florida standard jury instructions for the DUI statute quote actual physical control of a vehicle means the defendant must be physically in the vehicle and have the capability to operate the vehicle regardless of whether she is actually operating the vehicle at the time in the 2011 case of State versus Fitzgerald the second district court of appeal to Florida noted that an individual's capability to operate a vehicle means that they must have the quote-unquote Practical ability to do so and concluded that evidence that a driver's keys were close enough for her quote to use them to start the car and drive away was sufficient to prove that she was an actual physical control of the motor vehicle similarly in the 1984 case of Griffin versus State the second district court of appeal of Florida ruled that the defendant who was found to sleep in a stopped vehicle in the middle of the road with their foot on the brake and their key in the ignition was an actual physical control of the vehicle it is unclear exactly where Ms Sophia's keys were when officer profer first made contact with her but the brake lights and the rear license plate light appeared to be on when officer profer approaches so although the key is not visible it was likely in the ignition and a court would almost certainly find she was an actual physical control of the vehicle regardless of whether there was any evidence that she actually drove the car however even if the vehicle was not on and the keys were not in the ignition as long as the keys were in an accessible location it is likely that she could still be convicted of DUI given Florida's broad interpretation of when an individual is an actual physical control of a vehicle so are you willing to participate in some standard field sobriety exercises for us [Music] I mean it's up to you it's your choice but then if you don't then we have to make a decision based on our evidence right now um how old are you I'm 19. yes I mean you can either participate in the standard fields for any exercises or like I said we just make our determination now upon you know speaking to you and our evidence what we smell what we see and we can go from there determine if we have enough to make an arrest or not I mean I'm willing to try okay you're willing to participate in the standard field sorority exercises yeah I'm going to read you some instructions real quick okay all right go ahead and stand with your hands down at your side I'm going to check your eyes okay so I'm gonna get out if in and this is going to be the stimulus where were you guys at before here we were at a house party okay was that here on campus no ma'am okay so and then you had Uber take you here and you just had your car keys on you so you got in the car on the car for warmth and then sat in here yes ma'am so I'm gonna check your eyes so you don't have any glasses contacts okay keep your head still and you're gonna follow this with your eyes only okay do not move your head do you understand these instructions yes ma'am follow the pen sorry it's really cold no no keep your head still okay look straight come over here so our next test for our exercise we're gonna find the line you want to come over here and we'll leave line over here so just stand there with your feet together arms down at your side when I tell you to begin you're going to take nine Heel To Toe steps on the line turn around keeping one foot on the line and return nine Heel To Toe steps back okay so it's gonna look like this two three so it'll be 18 total like there and back and take nine down you're gonna do that turn with a series of small steps you're gonna take nine steps back Heel To Toe your arms got to be down at your side and count your steps out loud okay all right you may begin one turn yep is that okay okay keep going okay you could turn around and face me keep your arms down at your side we have one more exercise to do when I tell you to I want you to raise one leg either leg approximately six inches off the ground it's gonna be about the height of a soda can your foot's gonna be pointed out your eyes are going to be looking on it 1001 1002 1003 and so forth until I tell you to stop okay all right you ready yes ma'am all right you may begin you are yeah because you are operating a motor vehicle under the enclosed officer proffer leads Ms Sophia through a series of field sobriety tests or fsts before placing her under arrest for DUI Florida does not have a law requiring individuals to submit to fsts but in the 1995 case of State versus Taylor the Florida Supreme Court held that an individual's refusal may be used at trial and now quoting is probative of the issue of consciousness of guilt when an individual knew that refusal was not a quote Safe Harbor free of adverse consequences enacted in spite of that knowledge the national highway traffic safety administration has developed three standardized fsts which have been widely accepted and used across the country despite the existence of substantial criticism regarding the scientific validity reliability and objectivity of the tests the first test Ms Sophia completed was the horizontal gaze nystagmus test which requires the officer to observe the driver's eyes as they follow a moving object typically a pen or flashlight to check for certain involuntary jerking eye movements in associated with impairment next Miss Sophia performed the walk and turn test during this FST the officer asks the driver to take nine Heel To Toe steps along a straight line turn around and take nine steps back while the officer assesses the driver's ability to maintain balance and follow instructions the last test Ms Sophia underwent was the one leg stand test where the driver is instructed to stand on one leg with the other leg lifted approximately six inches off the ground for about 30 seconds while the officer evaluates the driver's balance and ability to follow instructions officer proffer does not mention in the video exactly what actions resulted in Miss Sophia failing the fsts but she can be seen stepping off the line during the walk and turn test and wobbling slightly during the one leg stand given her age and the reduced alcohol limits for individuals under 21 it is likely a court would uphold her arrest particularly given the fact that she readily admitted to drinking before participating in field sobriety testing all right we're gonna go to the back of my car you have anything sharp on you any knives weapons no needles nothing like that I have my idea into my friend's ID I'm just going to pat you down and make sure you don't have anything on you foreign yes sir just the wallet itself it's black it says Kate Spade on it has a car key attached to it and then also like a key to get into my establishment okay all right you can have a seat back here thank you all right I'm gonna go ahead and buckle you up have you ever been a Russell man okay so what we're gonna do is we're gonna go down to the DUI Center where um we'll request a broadcast from you yes ma'am and then from there you'll be going to the Orange County Jail cool for DUI but they can only hold you for I think it's 12 hours from like the time now so you should be able to get out I'll find out for sure I think it's either eight hours or 12 hours yes ma'am all right hang tight okay go ahead and take out anything that you need I live right here it's in my house okay thank you so much excellent all right cool so we're good to leave her car here then um search your wallet do you have gloves on well he did whatever um that she's she's pretty much admitted to it she's using a fake ID for uh someone else's whatever you want to do but without her phone yep I think so I already locked the car yeah you don't have to tow it I guess she's allowed to park here one second come back over here to me unlock the car I can see a pair of uh cannabis in a clear view I was wondering what she did if you come over here to me I want to show you what I'm looking at there's a bag right there that looks like it has green leafy substance come over here come right here to me um yeah I wasn't sure which one so there's a seat with that bag right there sticking out of the seat it almost there's a green leafy substance at the very end of it could I be wrong to be honest I can't really tell it looked like she was hiding something so I asked her what she was hiding and she said oh nothing nothing and she was moving stuff around either way you got a good search for fervative movements yeah I'm gonna go in there and just take that based on my suspicion that's the only thing I'm going to take I'm not going to search the car or anything like that right now one of the officers states that he's going to seize a bag in the car that looks like it may have a green leafy substance and that the passenger was making quote furtive movements when they first approached the vehicle in the 1925 case of Carroll versus United States the Supreme Court created an exception to the warrant requirement for searches of vehicles holding that a vehicle may be searched without a warrant if the officer has probable cause to believe that it contains Contraband likewise under the so-called Plain View Doctrine as the Supreme Court explained in the 1993 case of Minnesota versus Dickerson quote if police are lawfully in a position from which they view an object if its incriminating character is immediately apparent and if the officers have a lawful right of access to the object they may seize it without a warrant however the court went on to note that quote if the police lack probable cause to believe that an object in plain view is contraband and without conducting some further search of the object I.E if its incriminating character is not immediately apparent the Plainview Doctrine cannot justify its seizure in the 2019 case of United States versus light seat the United States district court for the Middle District of Florida held that the incriminating character of a clear plastic bag with a leafy green substance was immediately apparent when two officers testified that they believed it was marijuana based on their experience and training in reaching this conclusion the court considered the 2018 case of United States versus Gantt where the 11th Circuit Court of Appeals which has jurisdiction over Florida held that officers were not required to quote unquote No with absolute certainty that a substance in a clear bag was crack cocaine and allowed for a quote Common Sense view to the realities of normal life to justify probable cause here because one of the officers described the object in plain view as a bag that appeared to contain a green leafy substance it is likely that a court would conclude the Plain View Doctrine allowed him to enter the vehicle and retrieve the bag however because the officer admitted that he was not sure if he saw anything and the other officer said he could not tell if it was a leafy substance it is possible a court would determine that the incriminating character of the item was not quote unquote immediately apparent it should also be noted that when deciding whether to inspect the item further one of the officers mentioned quote unquote furtive movements suggesting that one of the individuals may have hidden something suspicious movements may be considered as a factor in determining whether the search was reasonable but the legality of such a search will depend on the specific circumstances of the case and whether the officer's actions were deemed reasonable under the Fourth Amendment for example if an individual tries to throw something out of the window or hide items under the seat or floor mat it may raise suspicions and could justify a search of the vehicle in this instance although it turned out that the bag did not contain marijuana a court would take the allegedly suspicious movements into consideration when determining whether the officer's search of the vehicle was reasonable it's based on the movement so there might not be weed but from what it looks like so I promised okay let's let us at least just find it if there is anything and then we'll go from there we're not searching okay what the vehicle's not being searched it was affirmative movement that looked like something in my experience definitely looked like a baggie and beauty where it looked like you were hiding something underneath the towel yeah nothing in the car thank you so much thank you thank you after the arrest behind the mug shot reported that Miss Sophia took two breathalyzer tests at the police station for which breath alcohol levels of .099 and .088 were recorded meaning she was both over the legal limit of 0.02 for someone under 21 and the limit of 0.08 for all drivers the channel also noted that to resolve her case Ms Sophia agreed to a DUI diversion contract which involved 50 hours of community service DUI school a victim impact class a 10-day Vehicle Impound a 500 donation to a non-profit a fee to the department and an interlock device for one year overall the UCF officers get a B minus because although they maintained professional demeanors and likely remained within their legal Authority throughout the encounter they failed to exercise their discretion to resolve this incident without resorting to Legal intervention and instead chose to arrest a young driver who seemed to be attempting to avoid driving while Under the Influence that being said the Florida legislature has explicitly chosen to criminalize not only operating a motor vehicle while intoxicated but also being in so-called actual physical control of a vehicle and while I do not necessarily believe that this legislative Choice serves to make the streets safer it seems clear that Miss Sophia's conduct was a violation of the state DUI statute at least as Florida courts have interpreted it however making an arrest was not the only tool the officers had available to ensure that Ms Sophia did not drive after drinking and in my opinion they should have explored other options to get her home safely instead of punishing her for trying to avoid a dangerous driving situation Ms Sophia also gets a B minus because although she remained respectful throughout the interaction she failed to exercise her right to remain silent and agreed to participate in field sobriety testing when she was not required to do so it is likely that at the time officer proffer approached Ms Sophia's car she did not have the Reasonable Suspicion necessary to detain her and although courts have consistently held that officers can approach parked vehicles to engage in consensual encounters without any sort of Suspicion whatsoever Miss Sophia immediately admitted to drinking and given her age in the lower BAC limit for underage drinkers likely gave the officers probable cause to arrest her even if she had refused field sobriety testing then miss Sophia agreed to field sobriety testing which given the Fairly subjective nature of fsts gave the officers more evidence to use against her after her arrest this encounter demonstrates how citizens can hurt their own interests by answering questions and agreeing to field sobriety tests and why it is essential for drivers to invoke their rights during DUI investigations let us know if there is an interaction or legal topic that you would like us to discuss in the comments below thank you for watching and don't forget to check out my second channel for even more police interaction content [Music] thank you [Music]