Saturday, March 8, 2014
As you know, Justin Bieber was arrested in Miami for DUI, resisting arrest, and driving on a suspended license. TMZ posted a PDF document that purports to be the arrest report. [update: the PDF seems to have been taken down] If it’s accurate, Bieber might have a decent defense case.
I defend a lot of DUI or OUI charges and these cases often follow a certain pattern. Maine OUI law differs in some respects from Florida’s, but DUI investigation is pretty much the same across the country. From what I can tell, this case did not follow the normal pattern and some of the most important evidence is missing.
Bieber and another car appear to have been setting up for a drag race when the police arrived. An officer estimated Bieber’s speed to be 55-60 in a 30 MPH zone, but speeding is not an indication of impairment. Officers are trained to look for weaving within the lane or across lanes, swerving, crossing the center line or fog line, narrowly missing or striking objects in the roadway, hitting the curb, and certain other clues that tend to show a person was impaired and unable to control the car. None of that is in the report.
Once they have contact with the driver, officers often try to get admissions of intoxication. They’ll ask the driver how much they had to drink or if they’re feeling okay to drive. In Maine, many officers ask the driver to rate themselves on a scale of 1 to 10 with 1 being sober and 10 being completely drunk. Any answer other than “zero” or “ one” is an admission that the driver is feeling impaired. That alone can be enough to prove operating under the influence. From the reports I reviewed, none of this happened in Bieber’s case.
Some of the other common clues of impairment are also missing: Bieber did not stumble of sway or grab the car for balance as he exited the car. The officer does not note any slurred speech either and Bieber told the cops he was not drunk.
Press reports conflict on this but the PDF I reviewd seems to say that Bieber did not do FSTs or field sobriety tests. That’s really smart. These tests are voluntary and they are often the key evidence in an OUI case. They help create probable cause for the arrest and they help convince the jury that the person was impaired. Standard Field Sobriety tests include an eye test, a walking test down a line and back, and a one leg balance test. The report is thin, but seems to say that Bieber was not given the tests before his arrest and when they were offered at the jail, he refused.
The arrest report says the Bieber consented to a breath alcohol test and TMZ is now saying that the result was .04, well below the .08 limit. In a case with a low breath test, or where drugs are suspected, the FST evidence becomes even more important, if it’s lacking here, the defense case gets better.
Some have pointed out that the Bieb is under 21 and they think this means he's automatically guilty of DUI if has any alcohol in his system. This is wrong. Florida has a .02 tolorence for alcohol in drivers under 21. That means that the BMV will automatically suspend the driver for 6 months if they test at .02 or higher.
Maine has a simlar but harsher rule, here the limit for drivers under 21 is .00 and the mandatory suspension is 1 year. In either state, the suspension through the BMV is a seperate matter from the criminal DUI or OUI charge. Regardless of age, the prosecution must prove that the driver was impaired to some degree or had an alcohol level of .08 or more. If they can't prove that, the driver is not guilty of OUI or DUI.
It will be interesting to see how the case develops. While the DUI might be hard to prove, the expired license and resisting arrest could be a slam dunk. Though he might plead to those lesser charges, I'll be surprised if Bieber ends up with a DUI conviction.Tweet
Attorney Luke S. Rioux started the Harmless Error blog in 2012 covering developments in criminal law and trying to explain how and why the criminal justice system does what it does. Criminal cases are in the news everyday and it’s easy to read those stories as strange anecdotes. There’s always a lot more to it and this blog tries to look at the law, strategy and public policy behind those headlines.
Wondering what “Harmless Error” means? Read this post for a definition.
I’m a criminal defense attorney in Portland, Maine. I handle cases in State and Federal Court ranging from disorderly conduct to murder. I work for Fairfield & Associates an 11 lawyer firm with offices in Lyman and Portland. The firm also handles family law, personal injury and other case types.
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