If you are arrested for a DUI, it’s serious. Florida laws are tough on those driving under the influence of alcohol, chemicals including prescription drugs, or illegal drugs. Driving or actual physical control of a vehicle while impaired by alcoholic beverages, chemicals, or controlled substances can result in various charges. These offenses vary in severity of punishment, but, except for commercial vehicle cases, require proof that the accused: drove or was in actual physical control of a vehicle; was under the influence of an alcoholic beverage, a chemical substance listed in Florida Statutes, Section 877.111, or a controlled substance listed in Florida Statutes, Chapter 893; was impaired or had a blood or breath alcohol level of .08 or higher. Such conduct is unlawful even on private property.

Usually, the offense involves the operation of some kind of motorized vehicle. It may, however, involve the operation of other modes of transportation such as bicycles and scooters. It may be committed in or on any device used to transport a person or property on a highway, except for those used exclusively on stationary rails or tracks. However, the Implied Consent Law, which establishes procedures for securing and testing samples, applies only to “motor vehicles”.

Typically, an officer or another witness sees the driving or the defendant’s statements may prove the driving. When that is not true, the circumstantial evidence rule applies. Thus, in Davis v. State, for example, the court acquitted the defendant where the evidence failed to overcome his testimony and other proof that he was only a passenger in the car. The court reached the same result in Lukas v. State, where there was no direct evidence of driving or actual physical control and the circumstantial evidence failed to exclude every reasonable hypothesis of innocence. The court came to a contrary conclusion in West v. State, in a DUI manslaughter based solely on the State’s expert testimony.

Circumstantial evidence of driving is often necessary where there is an accident involving only one person or several people who are so incapacitated that they are unable to identify the drivers. Proof of actual physical control may be unavailable in such cases because the defendant was not seen in control of the car, the vehicle could not reasonably be operated, or the offense was one usually requiring proof of driving, such as DUI Manslaughter.

Records Sealed/Expunged

Though some legislatures have adopted statutes dealing with the use, dissemination and expungement of arrest records, the question here is whether there is a constitutional right to such expungement when the arrest violated the Fourth Amendment. Some cases have held that there is as part of the constitutional right to privacy, but the more recent cases have ruled otherwise on the strength of Paul v. Davis, holding that this penumbral right has to do only with “matters relating to marriage, procreation, contraception, family relationships, and child rearing and education.” 

Some authority is to be found to the effect that the expungement remedy can be grounded on the Fourth Amendment, but while dictum in some cases would suggest that an arrest without probable cause is per se a basis for expungement, the decisions do not support that proposition. Typically, expungement has occurred or been recognized as potential relief where there was a Fourth Amendment violation of an egregious nature. In any event, a balancing process is called for, which suggests that total expungement (as contrasted to limits on use) will be inappropriate when some legitimate future use could be made of the record.

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