"I was only drinking at red lights and stop signs, officer!"

I'm sure you heard that creative defense from the Florida man out in Vero Beach when he was stopped for suspicion of DUI. He was stopped after a woman called police to complain about him continually hitting her bumper with his car while waiting in line at the McDonald's driver thru. The police officer showed up and saw a bottle of Jim Beam in the passenger seat next to Earle Stevens, Jr., the driver. According to the officer, as reported in the Orlando Sentinel, the questioning then went something like this: 

"I asked him if he was drinking in the vehicle and he stated, 'No.' When I asked him where he was drinking he stated, 'Stop signs.' He further explained that he was not drinking while the car was moving and only when he stopped for stop signs and traffic signals." 

Thodonal/Getty Images/iStockphoto

Unfortunately for Mr. Stevens, that defense won't hold up even in Florida. While I'm sure the Florida legislators didn't have Mr. Stevens in mind when they wrote the Florida's DUI law, they certainly considered his defense. The Florida statute, located at section 316.193, states: 

"A person is guilty of the offense of driving under the influence...if the person is driving or in actual physical control of a vehicle within this state...."

While there was a witness to Mr. Stevens' driving (the woman he kept running his car into), assume the officer just showed up and saw him sitting in his car with a bottle of Jim Beam. He didn't see Mr. Stevens driving the car, but only came upon him allegedly under the influence and next to an open bottle. This would be a situation where the prosecutor must show that Mr. Stevens was in or on the car and had the capability (or practical ability) to drive it. 

Using the alleged facts of this story (and not commenting on whether he is guilty or not), Mr. Stevens' defense fails in many ways. First, even though he was drinking while stopped, he was still driving while under the influence. But even if Mr. Stevens didn't talk to the officer and admit to having those drinks while stopped, the officer found him in the vehicle, stopped, apparently under the influence of alcohol and with an open bottle of Jim Beam next to him. While a jury could certainly acquit Mr. Stevens (whether it be a lack of other evidence or based on the inherent jury nullification power), the State could proceed with its case based on those facts. 

In fact, there have been cases where actual physical control was found when: a person was lying down in the front seat of a car parked in the parking lot while the engine was off and cold but had keys in the ignition; or if a person was slumped behind the wheel of a parked car and the keys were in his hand; and where a person was found in a stopped car where the keys were not in the ignition but somewhere else in the passenger compartment. In one situation, though, it was found that while the driver passed out in the car, but with the keys outside on the hood of the car, there was not enough for the case to proceed to the jury.

The idea behind actual physical control, according to the legislature, was to prevent impaired people from getting behind the wheel of a car. Unfortunately, an impaired person trying to do the right thing by not driving at all and sleeping it off in the car could still be arrested and prosecuted for DUI. The argument from the State would presumably be that the driver could still drive away while impaired or even that the driver drove impaired to that location and stopped the car. And typically, in these cases of actual physical control, it will be left for the jury to decide. 


George C. Palaidis is a criminal/DUI defense and personal injury attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Your Friday Funnies, courtesy of Senate Judicial Hearings

You'll know doubt hear, if you haven't already, about the confirmation hearing for federal judicial nominees today that included some stark revelations for one. 

Sen. John Kennedy, a Republican from Louisiana, began his portion of the questioning by asking the group if any had ever tried a case to verdict. One nominee, Federal Election Commissioner Matthew Spencer Petersen, was the lone person to indicate that he hadn't. 

Sheldon White/Twitter

At this point, Sen. Kennedy directed essentially the remainder of his questioning at Petersen and his qualifications, or lack thereof, to be the next U.S. District Court judge for the District of Columbia. 

You can watch the 5-minute video clip here. And it id definitely worth the view. 

Let me be clear, I can't speak for Petersen's qualifications in his present job, and I'm sure he is a fine lawyer. He is, however, not a trial attorney (by his own admission). That is a problem because he is nominated to become a trial court judge in a very busy court. 

When asked if he knew about a motion in limine (which, for our non-lawyers, is a very common motion filed and heard at the start of trials), Petersen fumbled through with his response and admitted his "background is not in litigation." 

As a trial court judge here in Fort Lauderdale once said, "When people begin their response to a question without giving the answer, I know they don't know the answer."

After being asked again about the motion in limine, Petersen responded "I would probably not be able to give you a good definition right here at the table." 

Other essential trial qualifications that Petersen lacked: Never tried a civil or criminal case; never tried a bench trial; he hasn't taken more than a couple depositions on his own, if that; he hasn't reviewed the Federal Rules of Civil Procedure or Rules of Evidence since at least law school; and he is not aware of the Daubert standard. All of these are essential for a trial attorney and trial judge.

The exchange between Sen. Kennedy and Petersen is brutal. Thankfully Sen. Kennedy revealed these issues. No one, regardless of their political persuasion, would want a judge hearing and presiding over a trial in their case who lacked such fundamental qualifications.  

George C. Palaidis is a criminal defense and personal injury attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Standing Your Ground...on the Tennis Courts?

Last night I came across an interesting article out of Miami regarding a Stand Your Ground case involving a tennis instructor and a 5 year old student. Yes, that's right, the adult tennis instructor is invoking Stand Your Ground (SYG) immunity in a case where he is alleged to have hit the young boy with the boy's tennis racquet. As always, though, there is more to the story and an actually viable claim for SYG immunity.

According to the defendant, Osmailer Torres, and his attorney, Eduardo Pereira (whom I know and have worked with and consider a fine attorney), the boy had a history of "various violent altercations" against the other tennis students. In this situation, the boy was the "initial aggressor" who, after being separated from the other kids, lifted his racquet "in the air and was poised to strike again against the other students and Mr. Torres." 

In the process of taking away the child's tennis racquet, Torres hit the child causing a bruise on the right arm and a lump on the eyebrow. Torres and his attorney claim it was inadvertent as he tried to protect the other children, while the State Attroney's office claims video of the incident doesn't show the boy aggressively approaching any of the other students. 

Here's the nuance in SYG that you may not have seen before: the law allows a person to use force against another if that person reasonably believes the force "is necessary to defend himself or herself or another against" the imminent use of unlawful force. See, Fla. Stat. § 776.012(1). In other words, a person can use force in defending others against another attacking them. 

So while it may not seem reasonable that Torres defending himself from a 5 year old swinging a tennis racquet, it is certainly reasonable that he was defending other children from the actions of this boy and in the process of using force to remove the racquet from the boy's hands may have caused some injuries. According to Assistant State Attorney Gabriela Plasencia, however, the State doesn't believe Torres was acting under any imminent threat of danger to himself or others based on the video.

The case certainly changes once more of the facts are known and that the SYG law protects those who also defend others.  

The hearing on the SYG motion is set early next year before Judge Oscar Rodriguez-Fonts. It will be interesting to see what the happens at the hearing.

George C. Palaidis is a criminal defense and personal injury attorney practicing in Miami, Fort Lauderdale, and the South Florida region.