Clay County sheriff's deputy charged with DUI, breath tests show no alcohol in his system

May 6, 2013

A veteran Clay County Sheriff's Office deputy was suspended following his arrest last month on a DUI charge following a traffic crash. James Avery was arrested by the Florida Highway Patrol after the 1:15 a.m. crash after he was allegedly mumbling his speech, unsteady on his feet and appearing to be very tired and drowsy, according to a report in the Florida Times-Union. Avery was arrested and charged with driving under the influence in Clay County, a misdemeanor punishable by up to six months in jail.

But Avery does have one piece of evidence that is in his favor for now. When police asked him to take a breath test, he did and it came back that he had no alcohol at all in his system, the newspaper reported. Police ordered him to submit a urine sample, which was sent to the Florida Department of Law Enforcement laboratory for analysis, the newspaper reported. It's unclear whether Avery submitted to that test as a condition of his employment or if his willingly did so as a part of the criminal investigation to prove that he was, in fact, sober at the time of his arrest. If the test was part of his employment, one would expect his Clay County DUI Attorney to argue that the test be thrown out in the criminal case.

A urine test could show drugs in a Clay County DUI suspect's system that would contribute the person driving under the influence. When someone is arrested on a Clay County DUI charge, the automatic assumption is the person was under the influence of alcohol. And our Clay County DUI attorney would agree that alcohol is the substance involved in the vast majority of DUI cases. Alcohol is more commonly detected, mostly because it is used more and is legal. The odor and signs of impairment also make it easier to spot for a police officer. If someone is on, for example, prescription narcotics, there isn't an odor an officer would immediately be able to pick up on when the driver opened his or her mouth to speak. A fair question in this case is: Why police would arrest Avery if the breath test came out .000? One reason is officers may have suspected he was on something else. Another procedural answer is the arrest occurs after the officer declares the driver has failed field sobriety exercises. Many people think breath tests are administered at the side of the road. They are not in Clay County DUI cases. The breath tests are given inside the jail as part of the booking process. So the driver has already been handcuffed and hauled downtown because the officer suspects there is enough evidence to charge the driver with a Clay County DUI. A breath test void of alcohol does not mean the person won't spend the night in jail and be charged with a DUI.

Our Clay County DUI attorney has represented hundreds of people charged with DUI, including those who have blown .000 on a breath test. Our firm is well-versed in the requirements to make a proper DUI arrest and can fully investigate the case of you or your loved one. If you or a loved one needs a criminal defense attorney in Clay County or the surrounding area, call The Mussallem Law Firm at (904) 365-5200 for a FREE CONSULTATION. Our Clay County DUI Attorney, Victoria "Tori" Mussallem, is available 24 hours a day, 7 days a week.