Engaging on social media has become a daily ritual for people, many of whom feel closely connected to their Facebook friends, Twitter followers, and TikTokers. But posting information on any of these social media platforms can become powerful evidence for criminal prosecutors who are working to convict you of a DUI or other offense.
At Stechschulte Nell, Attorneys at Law, we urge everyone to read this blog post to better understand how comments you post on social media can provide prosecutors with evidence that can be used against you in court. If you are facing DUI or other alcohol or driving-related charges in the Tampa or St. Petersburg area, contact our office for reliable legal counsel and experienced criminal defense services. As officially certified criminal defense lawyers, we know how to best protect you from unjust and avoidable convictions.
Can Prosecutors Use Your Social Media Posts as Evidence in a DUI Case?
Florida law permits prosecutors to introduce a defendant’s own words against them in court if the government obtained the statements legally. In most cases, a defendant’s self-incriminating statement is reported by the arresting officer who heard the words spoken. Determining if the statement can be used against the defendant usually depends on whether they were in police custody and whether they were first advised of their right to remain silent and other Miranda rights.
But if the incriminating statement was made by a person, not in police custody, then prosecutors are usually free to use a defendant’s own words against them very effectively.
DUI Driver Posted His Intent to Drive Drunk on Facebook
On New Year’s Day 2022, a 17-year-old girl died when her car was rear-ended by an alleged drunk driver on Route 95 in another state. The accused DUI driver ran from the scene and hid at his girlfriend’s home where he was arrested the next day. Investigators discovered that the defendant had posted these words on Facebook before the accident:
“no ima drink and see what happens .. I have a benz let’s see if I can [expletive] it up.”i
The Facebook post in which the defendant seemingly announced his intention to drive drunk presents a nearly insurmountable challenge to the defense lawyer. The delay in the defendant’s arrest prevented any testing of the blood alcohol content (BAC) of the defendant and left prosecutors without evidence with which to support a DUI charge. However, the defendant faces decades in prison for driving to endanger and leaving the scene of an accident resulting in death.
However, if this defendant remained at the scene of the accident and the police collected evidence of his intoxication, his Facebook post announcing his deliberate intention to drink and drive would have supported a charge of DUI manslaughter or even second-degree murder.
Your Social Media Posts Are Admissible as Evidence to Convict You
Other examples of social media posts that will come back to hurt you in criminal prosecutions for DUI or any other offense are admissions after the fact. For example, posting pictures of yourself at a bar earlier in the evening before a DUI arrest, telling your social media connections about being charged with DUI on your way home when you were “toasted” or “wrecked” after a night of drinking.
In other circumstances involving criminal charges of violence, people have posted photographs of themselves holding guns and other weapons later determined to have been used in the crime. And still, others who were charged with theft have posted photos of themselves holding the stolen money or merchandise. Some post photos or videos of themselves inside stores or homes they’ve broken into.
The most powerful example of prosecutors using a defendant’s social media posts against them is the display of video recorded by the defendant or coconspirators during the commission of the crime.
Learn More > Can Social Media be Used Against Me?
Experienced DUI and Criminal Defense Lawyers Fight Prosecutor’s Use of Social Media Evidence
Clients who post messages, photos, or videos on social media that include admissions to crimes or actual images depicting criminal activity dig deep holes that the best criminal defense lawyers need all their skills to counter.
Contesting the Authentication of Social Media Evidence
The Florida Code of Evidence § 90.901 and the Federal Rules of Evidence § 901 require that any items such as internet printouts of website posts or images must be “authenticated” before they may be entered into evidence. The law requires that a party must provide proof that the item being offered into evidence is what it purports to be.
The rules of evidence exist to prevent the introduction of evidence that is either inaccurate, unreliable, false, misleading, or unduly prejudicial. Especially in criminal cases, experienced DUI defense lawyers insist that no prosecution evidence can be used against a defendant unless it meets the requirement of authenticity.
What Prosecutors Must Prove to Authenticate Social Media Posts at Trial
If prosecutors want to offer a Facebook post into evidence, especially one in which the defendant confesses to a crime, they must first convince the court that
- the printout of the Facebook post fairly and accurately depicts the actual Facebook post,
- the Facebook post appeared on the defendant’s Facebook feed
- that the defendant authored or posted the confession
How would a prosecutor meet that burden of proof?
First, the prosecution would need to present a technical witness from Facebook to show the statement was posted, and that it was posted from the defendant’s computer or digital device. Next, the prosecution would need to present sufficient evidence to convince the judge that no one other than the defendant had access to the device or was a likely author.
The facts and circumstances of each case are unique. In some circumstances, it is unreasonable for defense counsel to argue that another person used the computer of a defendant who lives alone and has few visitors. But if a young person routinely loans their smartphone to friends and fellow partiers, and the alleged confession was posted during a night when others had access to the phone, a defense lawyer will probably succeed in keeping the alleged Facebook confession out of evidence.
DUI Defense Tampa
If you have been charged with a DUI, you need the help of the experienced criminal defense lawyers at Tampa’s Stechschulte Nell. We are on your side and will work to mitigate the charges you face. Call us for a free DUI case review today; 813-280-1244.
