By on February 10, 2011

The Eleventh Circuit US Court of Appeals on Tuesday saw no problem with jailing a man for eight hours after he blew .03 on a breathalyzer — far below the legal limit. Santa Rosa County, Florida sheriff’s deputies had arrested Roger A. Festa on the charge of driving under the influence of alcohol (DUI) on April 9, 2005. Since he had been entirely sober, Festa sued Deputy Adam Teichner and Deputy Douglas Burgett for unlawful arrest.

On the day in question, Burgett had received a 911 call describing a vehicle similar to Festa’s swerving. Burgett noticed Festa’s car and claimed he saw it make a sudden lane change in order to avoid a car that had made an unexpected turn. He also noted that Festa, while not speeding, was varying his velocity. Burgett initiated the stop.

Festa explained to the deputy that he and his wife were in an unfamiliar area looking for a place to eat. He admitted that he had a single drink earlier in the afternoon. Burgett claimed he smelled a “mild odor” of alcohol. Deputy Teichner performed the roadside sobriety tests and brought Festa to the station for a breath test that registered .03.

“Unfortunately, I couldn’t just let you go,” Burgett told Festa in a court deposition. “You were under arrest for DUI.”

Festa, who could add to his arrest statistics for the month, then explained how plea bargains would take care of the inconvenience done to Festa.

“Basically, once you were arrested for DUI, I made a determination from the conversations that we had between there and the jail that I was going to have this pled down to a reckless driving and then the reckless driving to a [nolle prosequi] so you would suffer no monetary damages or a record,” Burgett said.

Instead of cutting a deal, Festa pleaded not guilty to both charges. The state eventually dropped the DUI charge and a judge tossed the reckless driving charge nearly a year later. The three-judge federal appeals panel found that the deputies were entitled to immunity for their actions while on duty because they had done nothing unconstitutional.

“No decision from the United States Supreme Court, this court, nor the Florida Supreme Court has clearly established that continued detention after an arrestee registers a breath-alcohol level of 0.05 or less is unconstitutional,” the per curiam decision stated. “Indeed, neither the United States Supreme Court, this court, nor the Florida Supreme Court has established within what time frame nor under what circumstances an officer has an affirmative duty to release an arrestee. We therefore cannot conclude that Deputies Teichner and Burgett had fair warning that their continued detention of Festa was unconstitutional.”

Festa died on May 9, 2010 while waiting for the case to be resolved. Festa was a successful businessman who earned a silver and bronze star during his service in Vietnam as an Army Ranger. A copy of the unpublished decision is available in a 70k PDF file at the source link below.

Source: PDF File Festa v. Santa Rosa County (US Court of Appeals, Eleventh Circuit, 2/8/2011)


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17 Comments on “Federal Court Upholds DUI Jailing of Sober Man...”

  • avatar

    Nothing much to see here.  A BAC is just an trigger;  you can be arrested for a DUI with less than that.  Prosecution would have to prove you are drunk, and probably any jury would find not guilty.  But the officer had probable cause, and you do need some protection for police while performing their duties.
    Nice that this guy fought it — clearly a BS charge — but it was never going to win.

  • avatar

    I don’t see where the court detremined it was a false arrest or false imprisonment.

    • 0 avatar

      Exactly! You’re arrested for “DUI”, and held, even though you test under the legal limit? I personally don’t need a government official to tell me whether or not that’s false arrest and false imprisonment.

    • 0 avatar
      M 1

      There is no such thing as “the legal limit.”
      ANY impairment, however slight, is illegal. The “limit” is only the point at which they are allowed to ASSUME you are impaired. If you want to rail against something, rail against the limit itself, which is an automatic presumption of guilt.

    • 0 avatar
      M 1

      The “limit” is only the point at which they are allowed to automatically declare you impaired.
      You are not permitted to drive with ANY level of impairment, period.
      And yes, that poorly-understood fact is abused by the police all the time. Ask anybody who works in outpatient drug rehab like my ex did. In most places, a first or second DUI will land you in one of those programs for a few months.

  • avatar

    And the few folks that are aware of my existence (even fewer “know” me) wonder why I isolate myself from USA society as much as humanly or inhumanly possible.
    Thank goodness i can retreat into my shanty.
    If I had the wealth I could retreat even further and even seek out a place outside the USA allowing even further isolation but that would not be a total panacea.

  • avatar

    As far as I can tell, this is about whether the deputies personally could be held liable, not on the merits of the detention (which were already found… unmeritful… or whatever). Mr. Festa didn’t sue the state, he sued the deputies.
    It also sounds like Festa was acquitted of one charge and the other was thrown out. The judges in those cases clearly believed that it wasn’t OK to charge him.
    And the court said specifically that it was ruling on the deputies’ actions. Interpreting “The deputies are not themselves liable because their actions were not prohibited and they had no warning” is very, very far from saying, “It was perfectly fine for the state to do what it did”. Remember, what was determined as not being ruled unconstitutional is not false arrest and imprisonment – what was determined is that the officers didn’t act in an unconstitutional manner. Again, that’s completely different.
    It’s not terribly classy for TTAC to pander to its demographic and whip up readers’ fury with a (presumably) deliberate misinterpretation of the facts.

    • 0 avatar

      Remember, what was determined as not being ruled unconstitutional is not false arrest and imprisonment – what was determined is that the officers didn’t act in an unconstitutional manner. Again, that’s completely different.

      +1. The beat cop still has wide discretion when it comes to arrest. The Newspaper diminishes its credibility by pimping the culpability of the courts in this matter.
      Note that this IS a function of police ADMINISTRATION.
      If the citizens of Santa Rosa County want to spend their resources jailing (and then litigating against) people with 0.03 BAC levels, it’s their stupid choice to make.

  • avatar

    Something similar happened to a friend of mine in Texas. He was pulled over for a license plate light out, blew under the limit and was charged anyway. He was held overnight and had to pay an attorney, fines and probation costs plus traveling to court and to see the probation officer. Apparrently you can be charged for any level of alcohol of the officer chooses.

  • avatar

    This is terrible. All the way around.  I too would have sued, both the county/state and the guys that did that to me.  But I would have also warned them, in no uncertain terms, that I would go after them personally if they kidnapped me.  I’d remind them that they better be REALLY SURE they have a case before they change my life against my will.  This is AMERICA!  It’s kidnapping if you are held against your will.  I mean, if you waiter holds you in his/her place of business against your will, you could go after him/her personally.  Why not these clearly corrupt cops?  And to think this poor man died waiting for justice.  I really don’t understand why Tea Partiers and GOP all HATE government workers but often excuse police and soldiers with god complexes from the government worker category.

    • 0 avatar

      Making an arrest in good faith based upon probable cause is not kidnapping. BAC (Blood Alcohol Content) is ultimately irrelevant when it comes to probable cause for a DUI arrest. If you’re high on cocaine, meth, and oxycontin while you drive, your BAC will still be 0.000. If you have a mixture of alcohol and cold medicine, your BAC may still be well under 0.08 and your ability to drive still be totally screwed up. If you’re an 75lb woman and can’t hold your liquor, you can be DUI with a BAC well under 0.08. 

      The decision to arrest or not is made before the officer knows what the suspect’s official BAC is. A PBT given on the side of the road is not considered reliable enough to count as an evidentiary test. Some jurisdictions don’t even use them. The officer won’t “officially” know what the suspect’s BAC is until he has made the decision to arrest and transported the suspect to a jail or police station where the Intoxilyzer test can be given. 

      So, no, you wouldn’t be “kidnapped” and your lawsuits would ultimately fail, just as this one did.  

  • avatar

    Probable cause for a DUI arrest is not dependant upon the results of an Intoxilyzer. The probable cause for arrest is determined by the suspect’s driving and performance on field sobriety tests. Most people don’t know this, but the results of a roadside PBT is usually not admittable in court. The BAC test, performed after a person has already been charged, usually at a jail or police station is the number that will be admitted.

    In this case the suspect was:
    1. Reported as driving erratically by the 911 caller
    2. Observed to be driving erratically by the officer
    3. Admitted to having consumed alcohol
    4. Smelled of alcoholic beverages
    5. Failed his field sobriety tests

    Those factors together equal probable cause for the offense of Driving Under the Influence. A BAC of 0.08 or higher is not required for conviction in any state that I am aware of, although there appear to be plenty of reasonably intelligent people who should know better that apparently believe that it is. While his BAC was later determined to be below the per se legal limit of 0.08, that doesn’t mean that he couldn’t have been impaired at a .034. Considering that 0.02 is considered the per se legal limit for commercial vehicle drivers, it is not necessarily unreasonable to believe that he was, in fact, impaired.

    Could the state have convicted him for it in absence of a BAC > 0.08? Depends on the jurisdiction and in most cases probably not. In my experience most county level prosecutors have enough to do that they can throw back the weak DUIs in favor of the iron clad 0.08 or greater ones. What happens at the courthouse six months or a year after the arrest doesn’t mean that the arrest was bad.

    This suit was over whether or not probable cause existed for the arrest, not whether or not the state could overcome reasonable doubt to sustain a conviction. Probable cause for the arrest clearly existed.

    And, yes, TTAC is pandering. As usual when a law and order issue comes up. 

    • 0 avatar

      Dukeboy’s got it right.

      A driver is impaired when his driving is affected by alcohol, not just when he’s wasted.  The ‘legal limit’ is merely one way of prosecuting a DUI.

    • 0 avatar

      And, yes, TTAC is pandering. As usual when a law and order issue comes up.
      That’s true.
      My problem is with the litigation after the fact and how far the county seemed to dig in its heels. My guess is that the left(ish) brain-stems who run Santa Clara County would have been less legally confrontational had the arrested been an illegal without a license.

  • avatar

    Nothing to see here. Public servants forgot who the hell they work for along time ago. I guess HR could technically fire the owner of the company they work for. We need to start firing back before this gets out of control. 

  • avatar

    He admitted that he had a single drink earlier in the afternoon.
    That was a mistake.  Never admit to having consumed any amount of alcohol.  The officer isn’t going to be your friend just because you tell the truth.  It just gives him ammo.

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