In every Jacksonville DUI case that I have tried, I filed a motion in limine to exclude the police officer’s testimony that he believed that the Jacksonville DUI defendant was impaired. In a Jacksonville DUI case, impairment is an element that the prosecutor must prove. When a police officer testifies that Jacksonville DUI defendant is impaired, he is saying that the Jacksonville DUI defendant is guilty. With other crimes, the police officer cannot testify that he believes the defendant is guilty. However, Jacksonville DUI cases are treated differently, and the police officer may testify that the Jacksonville DUI defendant was impaired. Therefore, my motion in limine is denied, and the prosecutor enters this testimony in the Jacksonville DUI case.
Recently, I read about a DUI case from Broward County (State v. Rupp, Fla. Law Weekly Supp. 162RUPP (17 Fla. Cir. Ct. 2008)) were the prosecutor did not enter the officer’s opinion testimony. Then, the defense attorney moved to have the case dismissed. The trial court dismissed it. On appeal, the state won arguing that they proved impairment with the DUI defendant’s poor performance on the sobriety exercises, his speech, bloodshot eyes, and odor of alcohol. Still, this was a very creative route for a DUI attorney to take.