You have the right to remain silent. Do you understand? I need a I need a verbal yes or no. Anything you say may be used against you in court. Do you understand? You have the right to talk to a lawyer before and during questioning. Do you understand? If you cannot afford a lawyer and want one, one will be provided for you before questioning without charge. Do you understand? Has anyone threatened you or promised you anything to get you to talk to me? >> On the 29th of November, 2021, officers in Central Florida found a woman asleep in an active roadway. Engine running, traffic diverting around her. She was completely unresponsive. When woken, she drove onto the curb, nearly struck a utility pole, then stopped at a gas station. She could not shift into park. She nearly fell exiting the vehicle. Officers initiated a DUI investigation. This analysis examines whether every step from first contact to arrest was legally sound. >> Is the car in park? >> Yeah. >> Molton Drive. I need you to put it in park. You're in neutral. Put it in park. That's reverse. Park. Okay, can you turn it off for me? >> I can't. >> Turn the car off. Turn it off. Off. Like like turn the car off. >> I know. >> Is it off? Okay. You want to step out for me? >> Kilo 44, 10-8 33963. >> Have a seat for me right there. >> How do I get your ID one more time? >> Have a seat. >> Yes, ma'am. 33963. >> Sit down, yes. >> Keffer, good morning. >> Where are you headed? >> Home. >> Home from where? >> Here. >> From here. Did you go out tonight? Yeah, where'd you go? >> Home. >> You went out at home and you're going home? Home. Doesn't make much sense. >> 10-4 3081. 10-4 3081. Dispatch, 2081 10-4. Keffer. >> Where do you live at? >> Here. >> Where's here? What, this gas station? You live at the gas station? Doesn't sound very fun. >> It's not. >> No? >> 10-4 Kilo 14 unit track. >> 10-4. You know why I stopped you, right? >> I know why. >> Do you know Do you know why I stopped you, right? Why? >> 10-4 10-4. >> Cuz we know each other. >> Cuz we know each other. >> Mhm. >> I've never seen you before in my life. >> Why not you? >> You know me? How do you know me? >> Because we know each other. >> How? >> I know. I know the you know me and I know you and I know the same [ __ ] >> Who Who's them? >> Oh, whatever. You show me 10 subs. >> Huh? Who's them? Who's them that we know? >> Um same same [ __ ] >> going to be a link >> Same [ __ ] different day? >> Yeah. >> We haven't gotten much out of her. Uh no, I asked her why she knew why any of you guys stopped her and she says, "Yeah, because we know each other." So, that's kind of where we're at. She lives at the gas station. No, it's probably the person inside. I'm sorry. You were right >> We got it. You want to go on? >> You sure? All right. I'm going >> do? You got to You got to stay in this >> Got it. Got it. I'm not. Um but yeah, so we were at the light there um on the north side of the intersection. All of a sudden everyone's going around her. Thought it was an 11 Delta, so I go up here and I look inside and she's car's in drive. I knock knock knock. She doesn't wake up. Finally, she wakes up. She starts driving forward. So, I follow her. She crosses the intersection. She drives up on the curb right here. Almost hits the pole right there and then pulls into the gas station. I block her in and ask her what to put the car in. Drive and she put it in reverse. Then she put it in neutral. Then she just turned the car off. Then she tried to turn the car back on, put it in park. And then I asked her to turn the car off and she took her seatbelt off and got out. So, she has no idea what's going on. I'll do a supplement and all that, but Yeah. Yeah, and she's slurring. She's got a the car and almost fell fell in the grass. >> Under KDV Dombrowski 1973 the community care-taking doctrine permits contact without probable cause when public safety is at risk. Initial contact was constitutionally valid. Once impairment indicators emerged, the encounter escalated to investigative detention under Terry versus Ohio 1968 requiring only reasonable articulable suspicion, not probable cause. Florida statute section 316.193 defines DUI as actual physical control of a vehicle while impaired. Under State versus Graves Fla. 1991, a stationary running vehicle meets the physical control threshold. The subject was behind the wheel engine on. The statute applied from the moment of contact. >> 0450 >> I was asleep, bro. >> 0450 >> And do you have any ID on you? >> Good morning. I'll be 10-20 30938. >> Where are you coming from? >> Here. >> So from here? >> Here. >> Where are you coming from, not to. You came from here to here? >> Yeah. >> Okay. You said you don't have any ID on you? >> No. >> What are you What are you coming here for? >> Hanging out. >> Just hanging out, is it? Based on what we have here, we believe that you may be under the influence, so we're just going to do a field sobriety exercise, okay? All right, so you know how to stand up on one foot? All right. You don't You don't have any contacts, do you? >> No. >> Okay. Perfect. >> Do you have any disabilities, anything that would impede you from standing, walking? Nothing? >> Okay. All right. So, I'm going to check your eyes, okay? So, for me, if you can, just stand with your feet together with your hands by your side just like this. >> You're a taker. Go over there where the white line is. Let's go over here where the white line is. >> I just want to make sure that it comes out okay. >> All right. Now, if you can, you're going to look at the stimulus, which is going to be the light, okay? So, just follow the stimulus with your eyes only. Do not move your head. >> Okay. So, don't move my head. >> Yes. So, just keep looking at the stimulus, the light, until it's over, okay? >> Okay. >> And I'm going to do the same thing, but now we're going to go up and down. >> Okay. Okay. >> Feet together, hands to your side. >> I'm sorry. >> Yeah, you're fine. You're fine. Then that there, follow only with your eyes and your eyes only, okay? Don't move your head. Where Where the pen is, I need your eyes to stay with the pen, okay? I don't need you to start Keep looking forward at this. Just follow the pen, all right? Now, we're just going to go We're going to go up and down, all right? Keep your head straight. I'm going to do the same thing. Just follow We're going to go horizontal, okay? >> The officer administered the NHTSA three test battery, HGN, walk and turn, and one leg stand. Under State versus Betts, Flea, 2002, these tests are admissible when conducted per NHTSA protocol. Pretest screening for contacts and medical conditions was performed a required protocol step. Walk and turn, eight scored clues. Two or more correlate with back is greater than or equal to 0.08 in to 68% of subjects. One leg stand, four scored clues. Two or more correlate with back is greater than or equal to 0.08 in to 65% of subjects. A Romberg balance test was also used, not Nitsa standardized, admissible as an observation only. Probable cause is assessed on totality of circumstances. Cumulative clues met the arrest threshold. >> While you're walking, just make sure you keep your arms at your side and watch your feet the entire time. >> Okay. >> Okay. So, once you start start walking, don't stop until you have completed the test. Do you understand? >> Okay. >> Okay. >> All right. >> So, whenever you're ready, you can start. Make sure you Put your toe. >> Put your toe. >> Put your toe. >> Put your toe. >> Put your toe. >> Just whisper the count out loud. Remember to nine. >> Nine. >> Is that nine? >> Is that nine? >> Just whisper the count out loud. >> Out loud. Okay. >> You got to stop and turn around. We'll do it We'll do it going the other way. >> We can face the other way? >> We're going to go the other way. >> There you go. >> Ma'am, do you need us to demonstrate again? >> Face the wall. >> Do you need us to demonstrate the exercise again? >> No. >> Okay. So, you understand the exercise? >> I already seen it. >> Okay. >> Okay. >> No. >> All right. >> Nine. Nine. Nine. Nine. >> It's just >> Okay. >> It's just one second. >> All right. >> Sorry. >> That's fine. >> I'm sorry. >> No, no, you're fine. You're fine. When I tell you, you're going to raise either leg, it doesn't matter. So, right or left. Approximately 6 in off the ground, keeping your foot parallel with the ground. Okay? It's going to look like this. >> Don't start yet. Don't start yet. >> Oh, so don't start yet. >> Not yet. Not until I I'll tell you to, okay? >> Okay. >> All right. While holding that position, you're going to count out loud in the following manner. 1,001, 1,002, 1,003, and so on until I tell you to stop, okay? Remember, just keep your arms down. >> So, do I put my leg up or down or what? >> either leg. You're just going to hold it like this. Just 6 in off the ground, and you're going to count out loud. 1,001, 1,002, and you're going to keep going until I tell you to stop, okay? >> Okay. >> All right. >> Now? >> So, whenever you're ready, you can start. Again, you you can count out loud. >> Three. Wait. >> Keep your hands to your side. >> Hands to your side. >> Keep your hands to your side. Look at your foot and count out loud. >> Six. Seven. Eight. Keep going. >> Keep your hands to your side. >> Okay. >> Good. All right. >> All right, can you just sit there for or just stand there for a minute? >> All right, let's get out of this way. >> Okay. >> You're fine right there. All right, can you do one more exercise. It's going to be another bouncing act, okay? So, what you're going to do, just like this. You're going to have both hands and you're going to go hands in front like this. And then looking up with your eyes closed. Okay? >> Like right now? >> Well, I'll tell you in a second. You're going to do like this with your eyes closed and then you're going to do like this. You're going to try and reach behind as well with your eyes closed, okay? >> Okay. >> All right, you're just going to do that three times, okay? >> Three times? >> Three times with your eyes closed, okay? So, whenever you're ready. So, you can start. Okay. >> And then just put your hands down. >> Just put your hands down. There you go. Just relax. >> Just relax. Relax. >> Stand straight. Stand straight. >> Just stand straight. >> Oh, I got it out there. >> Oh, I'm sorry. Okay. >> There you go. >> There you go. >> Close this. Yeah. >> Okay, everything is set up now. >> I'm ready to breathe. Sorry. >> Negative. >> You want to go and take this watch off then? >> Yeah. >> Yeah, put this on. >> Berkemer v. McCarty, 1984. Traffic stops are non-custodial until formal arrest. Pre-arrest questions are generally admissible, but here the vehicle was blocked by patrol units. A court could find custody attached earlier, making pre-Miranda admissions legally vulnerable. Miranda was read at 12:41 on camera. Post-advisement questioning was procedurally compliant. Post-Miranda, the subject voluntarily described alcohol use with inconsistent, shifting answers. The Fifth Amendment right to silence was never invoked. Under Colorado versus Connelly, 1986, voluntary post-Miranda statements are fully admissible. Every word became part of the record. >> All right, stand up straight. >> I'm standing straight. >> And we're walking to the patrol car now. That's fine. Did I forget anything? >> You have the right to remain silent, do you understand? I need I need a verbal yes or no. Anything you say may be used against you in court, do you understand? You have the right to talk to a lawyer before and during questioning, do you understand? If you cannot afford a lawyer and want one, one will be provided for you before questioning without charge, do you understand? Has anyone threatened you or promised you anything to get you to talk to me? All right, that's So, where where are you coming from? The club? What club? >> I don't know. We went to several clubs. >> You don't remember which one? >> Well, we came from several clubs. >> Oh, you came from several clubs. Okay. How much did you have to drink tonight? >> One club. >> What? >> One club. >> No, how much have you had to drink? >> Oh, just one club. Two drinks from one club. >> You had two drinks from one club? Okay. Um I mean, from from what the other officer was saying, I mean, it didn't sound like you were just having more than or I'm sorry, only two drinks. You said you didn't have anything more than that? >> Well, just one drink from the club we went to. >> Okay, well, now you you just told me you had two at least two drinks. >> No, I'm saying like one We went to one club. And two drinks. We had two drinks from one club. >> Oh, each club you went to? Each club? >> Yeah, we we went to one club, so I don't know. >> You just said that you came from multiple clubs. >> Well, one club we had two drinks from one club. bit. >> You had two drinks at one club, but you went to multiple different clubs? >> I think >> I'm I'm just hard following. You said you had two drinks at each club that you went to. >> Well, I only >> You only what? >> You only went to two clubs. >> What time do you think it is? >> Oh, like 3:00 or 4:00. >> 3:00 or 4:00? Uh when was the last time you had something to eat? >> Like 3:00 or 4:00. >> 3:00 or 4:00? Where Where did you eat? >> Probably Taco Bell. >> Taco Bell? What, downtown Orlando Taco Bell? >> I don't know. I don't think it was downtown Orlando. >> Where were you? >> Huh? >> Where? Which Taco Bell, would you say? >> Probably at the corner Taco Bell. >> No, where? The location. >> Downtown. >> Downtown? Okay. Um What was the time span of your drinks? How long ago? When was the last time you had a drink? >> About an hour and a half an hour and a half ago. >> Hour and a half ago, and and the second to last one? Back-to-back drinks or you had a little break? Huh? >> Hour and a half ago. >> Okay. >> I'm just going to put your seat belt on. >> All right. >> Just lean back a little bit. I just got to get it off. There you go. >> That's good. >> Do you understand what you're under arrest for? >> No, but it's fine. >> Primary officer grade B plus. Care taking approach was constitutionally sound. Nystagmus pre-screening was correctly executed. No force used. Patient de-escalation maintained throughout a prolonged disoriented encounter. Deduction. Pre-Miranda alcohol questions create custodial ambiguity, a suppressible evidence risk. Implied consent advisory under Florida law. Stat. Section 316.1932. not captured on camera. Subject grade B. Cooperated with all FSD exercises and arrest without resistance, legally favorable conduct. Critical error, continued answering questions after Miranda. Silence is a right, not an obligation. Inconsistent alcohol statements will be used by prosecution. Every contradiction is an exhibit. Lessons learned officers Record implied consent advisory on body cam silence on this creates suppression risk. Officers, confirm the subject is free to leave before asking incriminating questions pre-arrest. Citizens, invoke silence immediately after Miranda. Inconsistent answers are more damaging than none. Know the law. Sleeping in a running vehicle in Florida can constitute DUI intent to drive is irrelevant. Let us know if there is an interaction or legal topic you would like discussed in the comments. 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