DUI: DRIVING IMPAIRED & EMERGENCIES

     My last blog entry explored the issue of actual physical control of a vehicle while impaired: the situation of pulling off the road when you feel you shouldn't drive. You still may be in violation of the law if you are in a position to operate your vehicle. It can be an emergency of sorts when you don't feel you can drive. What about a true emergency that compels you to drive in the first place?

     Take the recent case of an unfortunate friend in New York. He settled in at home to ride out Hurricane Sandy and consumed several drinks. He then received a call that his elderly, invalid mother had no food or power and her aid did not show up. Rightly perceiving an emergency, he braved the elements to get provisions to bring her a meal and generally to provide help. But feeling the effects of alcohol, my friend pulled over. The car remained running. A trooper soon pulled up behind him. Result? Arrested for DUI - actual physical control. 

     Valid emergency? Did he have an alternative? One hopes upon proof of these circumstances, the prosecutor will reduce the charge. The case is pending....

Abandoning a Crime, Criminal Intent & DUI

    Tampa Bay Bucs defensive lineman Da'Quan Bowers' recent arrest  for handgun possession at a N.Y.C. airport raises the question: when is a criminal act abandoned and the suspect no longer in jeopardy of arrest? Preparing for a return flight home, Bowers apparently tried to present his handgun at the airport for safe transport  before he went through security to board. Although properly registered and permitted in his home state, such possession violated strict N.Y. gun laws and he unwittingly brought it with him. Aside from other alternatives to deal with the gun and where all this falls on the stupidity scale, this young man clearly sought to avoid committing a criminal act or at least abandon one he was committing. The N.Y. law may be one of "strict liability", that is, the knowing possession itself is a crime even if you didn't intent to violate the law.

     Florida's DUI laws share some parallels with this scenario. I have handled many cases where a client gets in his or her car after consuming alcohol or medication, only to realize they feel impaired at some point. What happens next greatly affects the outcome with the police. Depending when that "uh oh" moment arrives, some simply sit in the driver's seat. Others have the key in their hand or have put it in the ignition. Next is starting the vehicle or actually driving off. Once having driven off, many pull over. Do they then put it in park, turn off the engine, put the keys away? Have they only  attempted a DUI or have they abandoned a completed DUI? Do any of these actions matter or have they violated the DUI law?

      In the Sunshine State, you may be guilty of DUI not just for driving while impaired due to alcohol or controlled substances, but also if you are in "actual physical control" of the vehicle. What does that mean? You may insist, "I didn't mean to drive impaired!" DUI laws do not require specific intent to commit this crime. So even if your actions show an intent not to operate that vehicle, like Bower's hapless handgun dilemma, just being in possession of an operable vehicle in a position to drive may be enough to run afoul of this law. Efforts not to drive may play well with a jury, minimize your punishment or even convince the prosecutor to reduce the charge, but if you put yourself in a position to drive, that is actual physical control.

      So what to do? When you've made the decision not to drive, if you are driving, pull over as soon as you safely can do so in a legal spot, turn off the car, put the keys where you can't reach them easily (out the window, in the glove box or the trunk for example but not in your pocket) and get into the back seat. This last piece is particularly important for vehicles with push button starters where the key fob need only be in the vicinity of the vehicle to start it. Once you've done this, it will be a stretch for an officer to make a DUI arrest if you were not seen driving. And finally, if you have a phone, call for a ride or taxi.

Direct Contempt of Court - Emotions Run High

       Something offensive done in front of a judge can constitute criminal contempt. The judge decides right then and there whether to make a finding of contempt and what penalty to impose, which can include up to 180 days county jail. It doesn't happen often, but I was reminded how criminal contempt scenarios do arise, especially during criminal court proceedings where emotions run high.

     The other day, a colleague related a criminal contempt scene he came upon in front of a particularly tough judge. He just left a courtroom when a woman from the gallery ran out, cursing and slamming the door, with bailiffs in hot pursuit. She was none too happy with a sentence imposed on her boyfriend. They pulled her back in to face the judge. 

     My friend, having seen another attorney in a similar situation many years ago rush to someone's defense, seized the opportunity to hurry back in, stand beside her at the podium and announce "I am her lawyer". After a few momements of harried whispering between them and calming her (and the judge) down, an apology came forth to the judge and all was well. Moral? Don't vent until you've left the building.