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Community Caretaking Function

What happens when a person falls asleep behind the wheel of a vehicle? You do not have to be driving to be charged with DUI. You might be arrested for DUI because you are in “actual physical control” of a vehicle even if the officer never saw you driving.

But when the driver is sleeping, the DUI defense attorney will consider filing a motion to suppress evidence based on the fact that the officer conducted an unreasonable search and seizure even though the officer had no reasonable suspicion that a crime or traffic infraction had been committed.

Having a legal basis for the stop is also an important issue when challenging the administrative suspension at the formal review hearing.

Attorney on Welfare Checks in DUI Cases in Tampa, FL

If your DUI case involves a possible bad stop or prolonged detention, then contact an experienced criminal defense attorney at Sammis Law Firm. We focus exclusively on criminal defense with an emphasis on drunk driving defense in the Tampa Bay area.

Our main office is located in downtown Tampa, FL. Our second office is located in New Port Richey in Pasco County, across from the courthouse at the West Pasco Judicial Center.

Call 813-250-0500 to discuss your case.

Factors for Community Caretaking Welfare Checks in Florida

When determining whether a legal basis exists for the stop, the court will look at a variety of factors including:

  • where the driver and vehicle were found – whether the vehicle is stopped in the middle of the road, in a busy intersection, on the side of the road, in a parking lot, or in a driveway at a private residence;
  • whether the engine is running;
  • whether the vehicle was in drive or in park;
  • whether the driver’s foot is resting on the brake;
  • whether the officer make initial observations of an open container of alcoholic beverages or drugs in plain view;
  • whether the officer could smell the odor of alcoholic beverages or drugs coming from the vehicle;
  • how long it took the officer to rouse or wake the driver; or
  • whether Fire Rescue was immediately called which might be evidence demonstrating a community caretaking function.

In many of these welfare check cases, the court will also consider whether the officers had reasonable suspicion in which to suspect impairment of the driver.

For example, in State v. Jimoh, 67 So. 3d 240, 241 (Fla. 2d DCA 2010), the court found there was reasonable suspicion to investigate where driver was asleep at the wheel of parked car for ten minutes, driver did not respond to banging on the car and alcohol smell emanated from windows open four inches.

In these cases, officers must figure out how to prevent the driver from becoming more of a hazard to the other cars and people in the area because the community caretaker function does not only encompass the driver but includes other members of the public.

In Dermio v. State, 112 So. 3d 551 (Fla. 2d DCA 2013), officers approached a car running, with its lights on, and the driver asleep at the wheel. It took multiple attempts to wake the driver. The Second District analyzed the case under Popple v. State, 626 So.2d 185, 186 (Fla. 1993). Florida law recognizes three levels of police — citizen encounters:

  1. consensual;
  2. an investigatory stop where there is reasonable suspicion a crime has been committed; and
  3. probable cause to support an arrest.

The Court explained that a welfare check is a consensual encounter and does not implicate constitutional protections. “Here, the deputy clearly testified that based on the time, location, Dermio’s appearance, the fact that the car motor was running, and the fact the lights were on, she was concerned for Dermio’s safety. The deputy’s classification of the stop as ‘investigatory’ in nature does not control our disposition because it is clear the deputy was initially conducting a welfare check. Thus the interaction began as a consensual encounter.” Dermio, 112 So. 3d at 556.

“Yet, even though the initial stop was consensual, that does not end our analysis because the deputy went on to ask Dermio to roll down the window on multiple occasions and the deputy eventually opened the door to Dermio’s car. This court has repeatedly held that where an officer orders an individual to exit a vehicle, an investigatory stop occurs.”Id.

The Court additionally noted that this principle was extended to situations in which an officer orders an occupant to roll down a window. However, because Dermio was “out of it” and the officer’s concern for his safety had not been alleviated, the deputy’s requests to roll down the window did not turn the consensual encounter into an investigatory stop. Id.

The Court found that the opening of the car door was a continuation of the welfare check. See also Vitale v. State, 946 So. 2d 1220 (Fla. 4th DCA 2007)(finding that where driver was slumped over the seat with engine running in a convenience store parking spot, following a 911 call to dispatch, it was reasonable for officers to open door to car to render aid).

[T]he Supreme Court has squarely held (l) that “the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid” and (2) that “police may seize any evidence that is in plain view during the course of their legitimate emergency activities.” Vitale v. State, 946 So. 2d 1220, 1221-22 (Fla. 4th DCA 2007).


This article was last updated on Friday, September 13, 2019.