This week a Collier County man from Immokalee was arrested for drunk driving in a golf cart when deputies tried to pull him over. According to reports, Alex Acevedo saw the cops, pulled over, tossed a can out the side of his cart, and then sped off. He got to a nearby residence, tossed his cell phone to someone before being detained. Deputies indicate he smelled strongly of alcohol, had trouble maintaining his balance, and refused to do exercises. He was arrested and charged with DUI and Resisting an Officer.
Notably, Mr. Acevedo actually got lucky. He could have been charged with Fleeing, which is a felony. The golf cart is technically a vehicle, and he left the stop– fleeing does not require high speeds– so he could have been charged with a felony in addition to the misdemeanor resisting charge. That’s probably some fair discretion to leave it at DUI, it’s not like he was on a high speed frolic! Again, the attempt to get away from the original charge was worse than the underlying offense.
Apparently, fleeing in a golf cart is not that unusual. A couple years ago in Martin County, several men fled a stop. One of them ran onto a golf course, stole a cart from some golfers as they played, and continued to flee. As golf carts are not very fast, he was “immediately” captured by deputies and taken into custody. Newsweek covered that case, and cited several other recent occurrences. So, fleeing on a golf cart is not that rare, but I suspect escaping on one doesn’t happen very often.
I was able to get back into a courtroom for a socially distanced trial this week. It was my first since the pandemic hit, and quite a different experience, between physical distancing and the clear face masks that were provided so that we could see the faces of the jurors and the witnesses. We got a not guilty verdict for my client’s DUI, which was a huge win for him, and a relief to be able to move past the case now that it was done. And it was made easier for us since there was no video. I’ve talked about the failure of many law enforcement agencies to provide regular video recording of their citizen interactions and arrests, including just recently. Many times, the video would assist the government in their prosecution of the case. That’s particularly true in DUI cases, where the only form of proof is the officer’s testimony about their subjective opinion about the performance on field sobriety exercises. Jury’s expect that evidence, and defense attorneys hammer the absence of video (or often, any corroborating evidence to the opinion testimony.) In my trial this week, there were several jurors that indicated during jury selection that they would WANT to see video evidence. While the ones that said it out loud may have been struck from the panel, there were likely jurors selected that had a similar, unstated desire to see video evidence as well. After all, jurors want as much evidence as possible, and prosecutors want as much evidence to introduce to help prove their case. There’s a concern that a video might not support an officer’s testimony, but if that’s the case, we shouldn’t be prosecuting those cases. For instance, on a DUI case, if the video doesn’t help the impairment case, prosecutors can know which cases should not be taken to trial before they drag a panel full of jurors in for the day, particularly during a pandemic. Frequently, there are disputes between different versions of a story by witnesses on a case. Often, there is a discrepancy between what an officer says, and what the Defendant or his witnesses say about the details of a case. I suspect there is a thinking that it is beneficial for law enforcement not to create video, so that it is harder to challenge the officer’s version of events; the reality is that many disputes would be settled by the video. Disputes in evidence lead to more hearings and trials to settle the disputes, where a video is usually the best qualitative evidence that could be presented. The lack of video hurt the state’s prosecution in this case, and I have several other cases that are still pending because we don’t have video to resolve the dispute in facts. I feel like I do an “all cops should have videos” blog post nearly annually here, and several of our local agencies have added body cameras (Fort Myers and Cape Coral police both have done so). But the majority of law enforcement officers in Southwest Florida still do not have body or even car cameras. And defense attorneys like myself are going to keep hammering the issue in court, and jurors are going to keep being surprised that videos are not readily available in the year 2020.
Wanted to share this as a reminder to take Driving Under the Influence seriously. Colorado Rockies legend Todd Helton pled to a DUI and was sentenced to two days of incarceration, in addition to probation and classes and all of the other requirements of a DUI conviction. The article doesn’t say if he had any credit, he may have done those days the night he was arrested, but it just goes to show that even rich and famous don’t get a break on DUI.
It’s worth noting that even with the public health emergency, law enforcement is still on patrol, and will still arrest for DUI. Even if you don’t go to jail tonight… that doesn’t mean you aren’t facing jail time down the road. The cases are not getting dropped… just pushed down the road. Be safe, and don’t drink and drive!
States across the country have set a testable limit on the level of alcohol in someone’s bloodstream as a threshold in lieu of demonstrating impairment. While .08 has been established as a baseline legal limit for alcohol, there is no test available to readily measure the amount of THC, the active ingredient in marijuana, that is present in someone’s system. CNN.com took a long look at the issue, and at ongoing efforts to create a test similar to the breathalyzers that measure alcohol for purposes of prosecuting DUIs.
It is against the law for anyone to drive under the influence of alcohol or drugs, even if the drugs have been prescribed. Florida defines under the influence as “under the influence to the extent that normal faculties are impaired,” and other states use similar definitions. That’s why law enforcement use field sobriety exercises: they are meant to give the officers a chance to observe a driver to see if their faculties appear to be impaired. The shortcoming of those tests is their unreliability and that they are subjective: an officer will see impairment if they are looking for it. The breath and blood alcohol tests at least provide some consistency, though they are not impairment based. Time will tell if science can come up with something comparable for THC and other controlled substances.
Reliance on impairment based tests is challenging for law enforcement when a case goes to trial. Unless the impairment is clear, a jury may be reluctant to find it beyond a reasonable doubt. The subjectivity may matter more in a DUI than any other, and the outcome of a DUI is more dependent on the skill of the attorneys trying the case. The ambiguity cuts both ways, because the subjectivity of the field sobriety testing may lead to an arrest, and there is no dispositive scientific test to disprove the allegation. If a cop thinks you are impaired, you can be arrested, and the case may have to go to a jury trial. It will be interesting as this field becomes more important with the expansion of recreational and medicinal marijuana.
As always, be safe and don’t drink and drive this holiday. FHP wants to make everyone aware of the dangers, and are running a DUI enforcement operation for New Year’s Eve. Other agencies know it’s a big party night, and are generally out in force. AAA is doing a free tow and go service, and Uber/Lyft/Cabs are way cheaper than getting a DUI! Be safe!
Andy Sigears was arrested last week for driving a Segway under the influence in Davenport, Florida. He was driving it right down a road, just down from where a Sheriff’s substation is located. Deputies say he was swerving, unsteady, and impeded traffic. He admitted he had drunk two bottles of wine, and blew .243, .220 & .238 on a breath test. Florida gives at least two tests, and would have administered a third since the first two were more than .02 apart. The legal limit to operate a vehicle is .08… and a Segway has wheels, so it is definitely a vehicle under the law in Florida!
So… a deputy in rural Ohio noticed an Amish buggy rolling down the street, and spotted a 12-pack of Michelob Ultra on the back, so he decided to pull it over. The occupants of the buggy ran off into the woods, and authorities are still looking for them. The horses continued walking down the road, but the officer was able to safely corral them. Not only did they have a case of beer, they apparently outfitted the buggy with a bangin’ sound system and there was a case of Twisted Tea found inside, too. The buggy was taken to a neighboring farm to care for the horses and law enforcement is waiting for someone to claim them.
LCSO, the Lee County Sheriff’s Office is planning a DUI checkpoint this weekend, in addition to saturation patrols targeting impaired drivers. Everybody be safe out there, get an Uber or a cab, but don’t drink and drive!
If you have any questions, be sure to speak to an experienced Defense attorney.
Parks Terry, of St. Louis, Missouri, got WAY out of control on his recent Florida Keys vacation. It started out pretty typically: he had too much to drink and passed out in his vehicle. Being that he was on vacation in Key Largo, his vehicle was a golf cart. He was in town visiting his elderly mother. When he was awoken by a public safety officer, he drove off on the cart, weaving all over the road, first waving at the officer, and then flipping him off. It went downhill from there.
Terry got back to his mom’s house and locked the door. One of the public safety officers tried to force his way into the house, and Terry’s mother barricaded the door by leaning up against it, while Terry laid down and pushed it with his feet. Another officer entered through another door, and was attacked by Terry. As more officers and deputies responded, they ultimately attempted to taser Terry, who grabbed the stun gun. Deputies say that he was tacked, and growled at them like a dog, while rubbing his face on broken glass on the floor.
It several people to finally cuff Terry. They carried him out and placed him in the back of the patrol car, where he continued to lash out. He kicked the door and broke the handle and the window switch. He yelled obscenities at the deputy the whole ride to the substation, which was on a whole other island, Plantation Key, some 40 minutes or more away, with a pit stop at the hospital. Deputies report Terry suffered a dislocated shoulder at some point during the altercation. He is facing charges for Battery on a Law Enforcement Officer, Resisting with Violence, Fleeing, Criminal Mischief, and a DUI. All of those except the DUI are felonies.
It appears that the officers other than the deputies may be sworn officers. If they are merely security officers privately employed, Terry’s aggression toward them would not be protected like the deputies’. For instance, battery on a security guard wouldn’t qualify for the law enforcement enhancement, and fleeing is only a crime if a vehicle flees a sworn law enforcement officer. They may be sworn officers, but it’s uncertain. The DUI and fleeing charges can occur in any vehicle, so it would not be a defense for Terry that he was driving a golf cart, as we’ve seen before. Even if it was a sweet red custom job-golf cart! This appears to be the first DUI we’ve covered on a golf cart… congrats, Terry!
Hopefully some pictures and/or video will come out from this incident, and we’ll be sure to share them here.
Los Angeles had their first successful prosecution of DUI on a scooter. And not like a Vespa, but one of those little motorized scooters. It sounds like California has a law written similar to Florida’s that prohibits operating any VEHICLE under the influence. Nicholas Kauffroath plead to one count of DUI, and another count of hit and run, after he struck an elderly gentleman and sped off on his scooter. I’ve seen DUIs on bikes, and even a motorized cooler, so keep that in mind that you don’t drink and drive/ride/roll!