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Here's why Denard Robinson wasn't arrested for DUI

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Being passed out in a partially submerged vehicle is suspicious, but it's not always enough to support an arrest for DUI or even a field sobriety test.

Melina Vastola-USA TODAY Sports

Jacksonville Jaguars running back Denard Robinson was found "asleep/passed out" in a partially submerged vehicle on Sunday. The facts (of which we are currently aware) have left many wondering why Robinson was not arrested for DUI or even given a field sobriety test.

While we may never know the complete totality of the circumstances surrounding the officers' investigation, here is a brief legal analysis of what is required to arrest someone for DUI, and why officers may have felt they did not have enough evidence of DUI to arrest Robinson for this incident.

On the scale of burdens of proof, probable cause is somewhere between reasonable suspicion and beyond a reasonable doubt. Probable cause for an arrest is a pretty low standard, but it is not without its limits. Officers usually develop probable cause for DUI cases via their observations before and after contact is made with the driver. These observations include: driving pattern, smell of alcohol, slurred speech, bloodshot eyes, difficulty following instructions, performance on Standardized Field Sobriety Exercises ("FSEs"), etc...

If an officer has a well-founded reasonable suspicion of DUI based on his or her observations, only then can the officer request a driver perform "FSEs".  This reasonable suspicion must be based upon more than a belief that the driver has consumed alcohol. Instead, the officer must have a reasonable suspicion that the driver is impaired by alcohol (or other substance).  In other words, the suspicion must be more than a "hunch" and must be based on articulable facts like slurred speech, odor of alcohol, or having trouble standing.

What's also important to note is that officers cannot lawfully request a driver perform FSEs unless the officer had a well-founded reasonable suspicion for DUI. The burden of proof to request a driver perform FSEs is lower than an arrest.

Florida courts have found no well-founded reasonable suspicion of DUI in instances where (1) the officer observed the odor of alcohol emanating from the driver and the driver beginning to stumble; (2) where the driver was involved in a crash and had the strong smell of alcohol coming from him; (3) the driver had a slight odor of alcohol, a dazed expression, and red eyes.

There are many more examples, but the point is that the officers must have a well-founded suspicion that the driver was impaired in order to even begin FSEs. Mere evidence of consumption of alcohol or other drugs is not the standard. There must be a well-founded suspicion that the driver is or was impaired at the time he or she was driving.

But even then, the officer can only order FSEs. In order to arrest a driver for DUI, the officer must subsequently develop probable cause to arrest.

In Robinson's case, we know that he was "asleep/passed out" at the wheel, according to police. We know that his car was submerged in a lake. We know that when the officers attempted to wake him up, he was somewhat unresponsive. We know that an officer screened Robinson for impairment and determined he was not impaired.

But we do not know the extent of the screening, or the basis for the officer's conclusion.

One can assume, however, that the typical indicators of impairment -- smell of alcohol, slurred speech, bloodshot eyes, trouble standing, difficulty following instructions -- were not present. Had Robinson been arrested, then the State of Florida would have been required to prove beyond a reasonable doubt that Robinson was impaired at the time of the crash. The officer's observations of Robinson would be a major part of the State's evidence for DUI at a criminal trial.

If the officers who screened Robinson for impairment did not notice many/any indicators of impairment via their screening, then they would testify to that at a trial. That testimony would certainly tend to create a reasonable doubt as to whether Robinson was actually impaired.

But we did not even make it to "reasonable doubt". For whatever reason, and after screening Robinson for impairment, the officers concluded that Robinson was not impaired, and that they did not have sufficient probable cause to make an arrest.

One may argue that being "passed out" in a car that is submerged in a lake, and subsequently being unresponsive is suspicious. The law, however, requires that officers develop probable cause based on articulable facts. But merely being suspicious is not enough for an arrest. That said, it appears the officers on the scene did an investigation to determine whether Robinson was impaired and concluded that he was not.

And that's why Denard Robinson was not arrested for DUI or given a field sobriety test.