State v. McCave Shows Over-Aggressive Nature of DUI Investigations in Jacksonville

Jacksonville police can be overzealous in their efforts to make arrests of drunk drivers. While citizens don’t want to be victimized by a drunk driver, drivers don’t want to be labeled drunk drivers without proof.

Those charged with DUI in Jacksonville must be prepared to take an aggressive approach when defending themselves against the charges. Jacksonville DUI defense lawyers and others have been fighting to cut down on the use of breathalyzers in DUI cases statewide and also scrutinize field sobriety tests and the initial traffic stop in many cases.
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State v. McCave, a case out of Nebraska, shows why inexperienced police officers can go too far and take too many liberties.

In this case, McCave was in his car, parked in the driveway of his father’s house. When he refuse to leave, his father called police. when officers arrived, they arrested him for DUI, even though he was sitting in the driveway, not driving the vehicle. He was charged with DUI, refusing to submit to a chemical test, trespass and possession of an open container.

At trial, he was convicted of all charges. But on appeal the Nebraska Supreme Court ruled that his arrest for DUI was unlawful because police didn’t have probable cause to arrest him. Therefore, all evidence from the DUI investigation should be tossed out of court. The convictions were overturned and the court granted a new trial on the trespass charge.

In order for an officer to begin a DUI investigation, he or she must have probable cause — or sufficient reasoning to believe a crime is being committed — in order to proceed. In the case of McCave, police had no reason to suspect he was “driving” under the influence after simply responding to a call of a disturbance at a house.

If all the evidence presented to jurors is withheld — a beer can, his statements, his refusal to take a chemical test — his trial goes in a much different direction. He can no longer be painted as drunk and uncooperative.

“Here, we cannot conclude that the admission of this evidence did not materially influence the outcome of the case,” the court wrote.”Because the county court did not suppress this evidence, we reverse the judgment of conviction for the DUI charge.”

Evidence at trial showed that he had actually given his car keys to a friend that night after several hours of drinking. He had walked or gotten rides to a bar and liquor store on the night in question, but hadn’t driven. He and two others had gone outside and only put the keys in the ignition to turn the radio on. It was only after refusing to turn the music down that police were called and he was dragged away to police headquarters.

Despite no evidence he was driving, police took a trespassing case and turned it into a DUI case, without just cause.


The Forbess Law Firm has been aiding clients who face criminal charges in Jacksonville for more than a decade and is here to provide aggressive criminal defense to anyone accused of a crime. If you or a loved one requires a Jacksonville criminal defense lawyer, contact our firm today. We are available through our website or by calling us at 904-634-0900.

More Blog Entries:

Jacksonville DUI Breath Testing Being Challenged as Unconstitutional: October 19, 2011
Man Tries to Use Taco as ID in Jacksonville DUI Case: October 17, 2011