Per Se DUI or DUBAL v Normal Faculties (Part 2)
In Florida, the State has two equally valid ways of proving a DUI. Both require the State of Florida to prove that you were driving or in actual physical control of a vehicle within this State. However, that is where the similarities end. Our previous post focused on the Per Se or DUBAL method to prove a DUI. This article will focus on the Normal Faculty Method.
Normal Faculties Impaired
In cases where the driver refused to take a breath test, or the results of that test were determined to be inadmissible, the State can still go forward with the charges and attempt to prove a DUI using the Normal Faculties method.
To prove a DUI using the normal faculties method, the State of Florida must prove:
- You drove or were in actual physical control of a vehicle within this state (as mentioned above);
AND
- You were under the influence of alcohol, a chemical substance, or a controlled substance to the extent that your normal faculties were impaired.
What are Normal Faculties?
When the State is using this method to prove a DUI, the Judge will read the jury Florida’s Standardized Jury Instruction which defines normal faculties.
The definition of normal faculties is:
Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.
The state will attempt to use the arresting officer’s observations and opinions from the scene of the arrest. These will include: the driving pattern, the stopping of the vehicle, face to face contact with the driver, the driver’s exit from the vehicle, the driver’s behavior at roadside, field sobriety exercises, and any refusal to take a requested test.
Fortunately, these days most DUI roadside encounters are video recorded. These videos often portray a scene very differently than the one described in the officer’s report. We have even had cases where the officer claims to have observed our client performing the walk and turn exercise extremely poorly, saying in his report that the client stepped out of the start position numerous times, stepped off the line between 3-5 times while walking, failed to touch heel to toe between 3-5 times, made an improper turn and did not count his steps out loud. Watching the video, none of the items described in the report happened. Had there been no video recording, we would not have been able to show the officer was incorrect in his observations.
Defeating Normal Faculty DUIs in Central Florida
Depending on the facts of your particular case there are many different trial strategies that can be employed to attempt to defeat a DUI when the state uses the Normal Faculty approach to proving the crime. If you did well on the Field Sobriety Exercises, yet according to the officer’s scoring criteria still failed them, we can regrade them using a fair scoring method. Using this defense, we have been able to show juries that our clients did 98% of everything the officer asked them to do correctly but was still arrested for DUI. Comparing that to a test in school where a 98% is an “A,” it is easy for a jury to see how absurd convicting for DUI based on the evidence present would be. In one case, where the officer did not demonstrate the exercises perfectly, we were able to use the State’s own scoring criteria to show that the officer had actually done worse on the exercises than our client who was accused of DUI. Our closing argument was basically that if you convicted our client, you had to convict the officer too. The jury came back “Not Guilty.”
Call the Board-Certified DUI Defense Attorneys at Katz & Phillips Today to Discuss Your Case
The Expert DUI attorneys at Katz & Phillips, P.A. will analyze the facts of your case and provide advice based on your individual situation. We are happy to discuss what strategies can be employed to win your case with you when you call. We look forward to speaking with you and answering all your questions. In all criminal cases, you, the client, decide whether or not to take a plea offer. It is our job to make sure you have the information to make the best decision for you and your family. Of course, we love to go to trial, so we never pressure our clients to take a deal. We hope you call to discuss your case with us.