I can’t think of an area of criminal defense that has more potential defenses than DUI.
To give you a glimpse of how we think about this stuff, we have put together a list of 36 of our favorite theories of defense in DUI case.
Now some of these are pretrial defenses. That means we can bring them up to the Judge in a hearing well in advance of trial.
Other defenses are trial defenses. That means we don’t bring them up to the Judge, but rather bring them up to a Jury at trial.
Of course, we always exhaust all pretrial defenses before using trial defenses. After all, if we can win the case without subjecting you to the stress of trial that is what we will do.
The police pulled me over for no reason!
Legal Challenge: Illegal Search and Seizure (4th Amendment)
The Fourth Amendment requires the police to have a valid reason for pulling you over.
If he doesn’t have a valid reason, then you can challenge the stop. If your attorney successfully defends you on a bad stop, all of the evidence that says you’re guilty of a DUI (e.g. odor of alcohol, slurred speech, bloodshot, watery eyes, breath test result) will be tossed out.
The State Attorney will be forced to dismiss your case.
For an officer to legally stop you, he must have:
A reasonable belief that you have committed, are committing, or about to commit a crime (usually drunk driving in a DUI case), or
Probable cause that you committed a traffic violation.
However, other traffic violations are more difficult for the cop to prove, and are often good candidates for motions to suppress. In Florida, these include:
Failing to maintain a single lane: Failing to maintain a single lane is not enough for the police to stop you unless you also affecting traffic. (Crooks v. State)
A cracked windshield: No turn signal stops: A turn signal statute only requires a signal if another vehicle would be affected by the turn. (State v. Riley)
For example, a common scenario is the DUI officer who aggressively stops a driver for going over the yellow line one time. The officer puts in his police report that he stopped the driver for “failing to maintain a single lane”. The officer, however, is silent as to whether the driver affected other traffic when he crossed the yellow line.
The officer pulled me over because I was in a bad neighborhood.
It is not uncommon for police officers to pull over individuals merely because they are in a “high crime” neighborhood. However, the fact that a person is in a high crime area does not establish a legal basis for the stop.
The officer came up to my vehicle while I was sleeping for no reason.
A surprisingly common scenario in Florida DUI litigation is the sleeping driver. While sleeping driver cases can be difficult to defend in trial, they are often ripe with pre-trial defenses.
If the officer comes up to your vehicle and then detains you without a valid reason, then a DUI attorney can move the court to suppress evidence. Remember, in Florida it is not a crime to sleep in your vehicle, and the officer’s actions about approaching your vehicle can be the difference between an appropriate encounter and an illegal one.
What is a “detention”?
It’s important to distinguish a detention from a mere “consensual encounter”. Remember, the policeman is only violating the constitution if he detains you, or restrains your movement. The following are examples of mere consensual encounters, and therefore legal for any reason:
1. Asking for an “ID” from a citizen who is sitting in his car
2. Closely following a car
3. Approaching a car in a public place
4. Approach a vehicle where a person voluntarily rolls down the window
5. Stop a police car next to a vehicle, so the car could still go forwards or backwards
Notice the slightly larger show of force that would count as a detainment, or seizure:
1. Asking a driver to exit a vehicle (Popple v. State)
2. Pulling on the door handle of a persons car (Danielewicz v. State)
3. Opening the door of a vehicle where a person is sleeping and waking up the person (State v. Garland 11 Fla. L. Weekly. Supp. 1010)
4. Pulling a cruiser behind a vehicle so that the driver’s ability to leave is restricted
I felt I had no choice but to take the roadside tests.
Legal Challenge: Coerced Compliance With Voluntary Tests
In DUI cases, the officer will ask you to take some tests roadside.
This is usually after the officer has “suspicion” that you are driving under the influence, but before he has the probable cause to arrest you.
That means he is asking you to take his tests to help him build his case.
However, in Florida and many other jurisdictions, you do not have to take the field sobriety exercises.
If the officer puts you in a position that you feel you are “required” take his tests or else, then the tests may be considered involuntary for purposes of your DUI case.
If the judge agrees the tests were really involuntary, then he or she will throw out evidence of the roadside tests, which can devastate the State Attorney’s case.
For more on this defense, see Washington v. State, 653 So.2d 362, State v. Earnshaw, 14 Fla. L. Weekly. 77 (Not consensual when officer said he just wanted defendant “to do a couple of exercises real quick to test your ability to drive”).
The cop pulled me over and made me wait for an hour before starting his investigation.
Legal Challenge: Unreasonable Length of Detention
Just because the police officer had a legal basis to pull you over does not mean he your has a legal basis to continue to hold you roadside for an extended length of time.
This situation arises when a patrolman pulls over a driver for speeding or some other traffic infraction, smells alcohol on the breath of the driver, but decides to call in another officer to do a DUI investigation.
That other officer may take minutes or even hours to arrive on scene and conduct the DUI investigation.
In some circumstances, such a delay may be unreasonable and violate the constitutional rights of the driver. If so, then a judge can throw out all of the evidence gathered by the second officer, potentially destroying the state’s case.
The officer arrested me without probable cause.
Legal Challenge: No Probable Cause to Arrest
Assuming the police officer had a reasonable basis to detain you, and reasonable suspicion to investigate a DUI investigation in a timely manner, the officer must have accumulated sufficient facts by the end of his investigation that, based on his training and experience, he had probable cause to believe that the driver was guilty of DUI.
For example, if the officer notices an odor of alcohol and empty beer cans, but nothing else, then the courts have concluded that the officer lacked probable cause to make an arrest.
For more on this defense, see Dorman v. State (where red shot watery eyes and a believe based on eight years of training that the driver had been drinking, but without smelling an odor of alcohol has been held not enough according to a Florida Court.)
The officer came into my home hours after I was driving and arrested me.
Generally an officer cannot come into your home without permission or a warrant. The only exceptions to this requirement are:
a. Hot pursuit of a fleeing felon
b. Possibility of imminent destruction of evidence
c. Need to prevent escape
d. Risk of danger to others outside of dwelling
Florida statutes further state that police can enter a home only when one of the circumstances above happened and it is a felony. The majority of DUI cases are misdemeanors.
If the officer has entered your home to arrest you illegally, the court will suppress evidence leading to a probable dismissal of the case.
The officer arrested me for DUI, but he did not actually see me drive.
In Florida, there is a rule that officers cannot arrest an individual for a misdemeanor without a warrant unless they actually witness the driving.
If the officer is investigating a hit-and-run DUI that is only a misdemeanor, the officer may continue the investigation, but cannot arrest anybody without a warrant.
If the officer has arrested a person without a warrant and then gathered evidence illegally, that evidence is ripe for suppression by the judge.
The officer arrested me, and then grilled me with questions, but did not read my Miranda rights.
Legal Basis: Miranda Violation
Once you have been arrested, new rules go into effect. One such rule is the reading of Miranda when the officer questions you. If you were in custody, and being interrogated, then the officer must read you your Miranda warning first.
In many cases, the arresting officer will get admissions from the arrested about how many drinks he or she had, if he or she felt impaired, etc. If these were elicited when Miranda applies, then the statements may be subject to getting tossed out of court.
For more, see Wikipedia’s Miranda Warning entry.
I didn’t understand what the officer was saying about that breath test machine, which is why I refused.
Legal Basis: Miranda Violations
When the officer asks you to submit to a breath test, it is after you are arrested. Unlike the field sobriety exercises, breath tests are, and are allowed to be, coercive in nature.
For example, the implied consent law mandates the officer let you know that your license can be suspended if you do not submit to a “lawful test of you breath, blood, or urine”.
And the officer needs to be very careful of exactly what he is telling you, which is why they often read implied consent language from a pre-printed card.
However, if the officer does not read implied consent correctly, and provides incorrect information to the accused, then evidence that you refused to blow can be thrown out of court.
In most cases, if there is no breath test result and the state is not allowed to mention that you refused, then the case is damaged severely enough that the state will reduce the charge if not dismiss.
For more on this defense, see State v. Hernandez, 9 Fla. L. Weekly Supp 633 a.
I didn’t understand what the officer was saying about those field sobriety exercises, which is why I took them.
Legal Basis: Miranda
Very similar to the preceding defense. What if you in took the field sobriety exercises, but because you did not understand exactly what the officer was telling you to do, you felt you had no choice but to take them?
If so, your DUI attorney may be able to get the testimony and video of the field sobriety exercises suppressed at pretrial motion.
The police officer shined his flashlight in my eyes, and said I’m “drunk”!
Legal Defense: Suppress HGN Testimony From Non-Experts, Evidence Code
Early in a DUI investigation, the police officer will shine a penlight into the eyes of the driver.
The officer is looking for nystagmus, or an involuntary jerking of the eye.
The driver is usually completely unaware that the officer will use that penlight test to testify that scientifically the driver was impaired. Left unchecked, the officers will try to pinpoint a breath alcohol level of .10 based solely on the perceived angle that the eyes began to jerk.
However, the officer must be an expert to present such testimony to the jury. If the DUI defense attorney can show the officer is not an expert in horizontal gaze nystagmus, the judge will throw out the evidence of the pen test, including any relevant portion of the video.
For more, start here Williams v. State, 710 So.2d 24, 29 (Fla 3rd DCA 1998)
My attorneys cannot get the software code for the breath test machine.
Legal Basis: Confrontation Clause, Substantial Compliance With Administrative Rules
While this defense has not been particularly successful in Florida pre-trial motion practice, there is still a place for the motion in the defense attorneys arsenal. Knowledge of this litigation can be useful in certain segments of cross examination of expert witnesses in DUI trials.
The officer didn’t watch me for the 20-minute observation period before making me blow.
Legal Basis: Non-Compliance With Administrative Rules
Currently, the breath test operator, inspector, arresting officer, or other person shall reasonably ensure that the person taking a breath test has not taken anything by mouth or regurgitated anything for at least 20 minutes prior to taking the test.
The State Attorney has the burden of proving that the arresting agency substantially complied with this rule.
Non-compliance with this rule can lead to suppression of the breath test.
My test results were really far apart
Legal Basis: Non-Compliance With Administrative Rules
The breath test operator has to secure at least two samples from the machine. That means, you need to have blown into the machine at least twice for the results to be admitted under the implied consent law.
The results must be within +/-.20 g/210 L. That means if the results are widely disparate and the officer did not take a third sample that fits in the range, the breath test result may be excluded.
What if the breath test operator was not properly trained or permitted?
Legal Basis: Non-Compliance With Administrative Rules
The officer or operator who administered your breath test must be properly certified and trained for your results to be admissible.
A breath test operator must:
a. Be 18 years or older
b. Have a high school diploma or its equivalent
c. Be employed by an agency for the CJT
d. Successfully have completed the breath test operator course
Once the breath test operator gets his or her permit, he must successfully complete the approved renewal course by June 30th following the four year anniversary of the permit.
If your breath test operator is delinquent on his or her renewal permitting, the judge will suppress evidence of your breath test, which often dismantles the State’s case.
Agency inspectors and blood test administers have additional requirements. EVERY case that has a blood, breath, or urine sample must be checked to be sure the person administering the test was permitted and qualified.
What if the machine was not properly maintained?
Legal Basis: Non-Compliance With Administrative Rules
Every machine must be inspected at least once a month, and again annually. This applies not only to machines in the police station, but mobile units as well. Furthermore, when the machines are moved for whatever reason, they need to be reinspected when they make it to their new “home”.
Your DUI attorney will pull all the maintenance logs of your machine. If the rules have not been complied with, the results may be suppressed.
The officer refused to allow me to take an independent blood test.
Legal Challenge: Violation of DUI Statute 316.1932
It often occurs to the arrested driver that a blood test might be a good idea. While the arresting officer is under no duty to facilitate or provide access to a blood test, under Florida law, the officer must give you access to a telephone to coordinate your own private blood test, at your own expense.
If the driver has requested access to a phone to try to coordinate a blood test and the office inhibited access to the phone, the court should suppress evidence of the breath test.
For more see Unruh v. State 669 So. 2d 242.
The officer took my blood without permission
The police are limited by the implied consent law as to how and when they can order the forced taking a blood sample.
In order to take blood without permission, the officer must have:
a. Reasonable cause to believe you were driving while impaired
b. You needed to be taken to a medical treatment facility
c. The administration of a breath or urine test is impossible or impractical
If these elements are not met, the taking of your blood is illegal, and your drunk driving defense attorney may get the blood results thrown out of court.
I was talking to the cop about an accident, and then it starts investigating me for DUI!
Legal Challenge: Violation of Accident Report Privilege
The police lost my video? But that video would have showed I was sober.
Legal Challenge: Motion to Dismiss for Due Process Violations
In the majority of counties in Florida and elsewhere, it is standard practice for the DUI investigating officer to record your performance on the roadside exercises.
For those who believe they were wrongfully arrested, these videos might represent the evidence needed to exonerate you in court.
What happens when the police lose the video from the scene?
If the evidence on the video was material and exculpatory evidence critical to the defense, and the officers acted negligent in failing to preserve the video, the State Attorney may have failed to preserve exculpatory evidence as required by the United Supreme Court in Brady v. Maryland.
The criminal defense attorney will then argue to the court that the gravity of the due process violation means there is only one remedy: a dismissal of the case.
The police put up a roadblock but did not have uniform guidelines for putting up the roadblock.
In every case where a DUI defendant is stopped at a roadblock, the DUI defense attorney must get the uniform policies in writing created by the police to handle the road block. Without uniform policies, the road block would be illegal, leading to potential suppression of the evidence and a dismissal of the DUI case.
“Proof beyond a reasonable doubt” applies to every DUI trial defense
The law of DUI in Florida states what a prosecutor has to prove. The law of reasonable doubt states by how much the prosecutor has to prove that the crime occurred.
A reasonable doubt is not a possible doubt, a speculative, imaginary, or forced doubt. These doubts cannot influence the jury to return a verdict of not guilty if there is an abiding conviction of guilty.
However, if after carefully considering comparing and weighing all the evidence, there is not an abiding conviction of guilty or, if having a conviction of guilt, it’s not stable but waivers and vacillates, then the charge is not proved beyond a reasonable doubt, and the defendant charged with DUI must be not guilty.
A jury can find reasonable doubt in the evidence, lack of evidence, or conflict of the evidence.
Almost every DUI defense is analyzed through the context of whether the state prosecutor can prove every element of his or her case beyond a reasonable doubt. Your DUI attorney should never let up, and should always keep the focus on the State Attorney to prove his case, and not shift the discussion to you.
The Car Was Broken!
The “Actual Physical Control” part of the statute is very broad, so that a jury could convict a driver if they were just sleeping in the car and the keys were nearby.
But what if actually driving the vehicle was impossible because the car or vehicle was broken?
The “inoperable vehicle” defense requires the jury to find a driver not guilty of DUI if the vehicle was inoperable at the time of the DUI. The burden is on the jury to find in fact that the vehicle was operable beyond a reasonable doubt.
To be clear, this applies only if the vehicle was inoperable before the impairment. If the driver was drunk and crashed the vehicle, leaving it wrecked, the defense does not apply.
Body Temperature Affecting Breath Test Results
An expert can testify that your body temperature can affect your breath test results. In people with fevers, the breath test results can be artificially high. Not to mention, people who are sick might exhibit lethargy and red bloodshot eyes that are otherwise thought of as signs of alcohol impairment.
Similarly, if you suffer from diabetes or other medical conditions, be sure to let your DUI defense team know, as these have a history of affecting testing results.
Time of Driving vs. Time of Testing
Florida allows blood and breath alcohol evidence to prove impairment. This evidence, however, is often collected an hour or more after the actual time of driving.
This evidence can be successfully challenged as being irrelevant to the question of alcohol readings at the time of driving. After all, it is illegal to be impaired when driving, but not an hour later.
In the common “last call” scenario, a driver may have a shot and a beer at last call but immediately before driving home. Expert testimony can show that it takes between 60-90 minutes for blood alcohol levels to reach their maximum after ingesting the shot. If the driver lives minutes from the bar, the driver may have been home and in bed before the alcohol reached the saturation point shown in the State’s tests.
I Was Not Drunk, I Was Tired!
According to NHTSA, a person who has been awake for 24 hours will act similar to a person who has a blood alcohol content level of a .10!
In today’s demanding workforce, it’s not uncommon to find an individual who awoke at 4 a.m., and was arrested after having only a drink or two at 3 a.m. the next morning!
While it is not wise to drive when you are tired, it is not against the law. Evidence that you exhibited signs of impairment because you were tired and not drunk can be enough to win your DUI case at trial.
Why Not Ask the Defendant For A Blood Test?
Legal Defense: Blood Tests are Better than Breath tests
We expect to be asked to “blow into the machine”. But without question, the science confirms that breath tests results are inferior to blood results.
Did the arresting officer give you an option to take a blood test? Did you request a blood test, only to be denied.
The DUI arresting officer will argue that he was not required in Florida to provide you the opportunity to give a breath sample. This may be true. But his legally obligated minimum requirement is irrelevant to whether he gathered evidence for the Jury to want to convict beyond a reasonable doubt.
I Did Great on The Roadside Exercises, But The Cop Said I Failed Them!
Legal Defense: Roadside Tests Are No Science!
Arrested drivers are confused and angered when the submit to the officers roadside tests, complete them without a problem, only to be informed that the Officer “failed” them.
The drivers believe and want to argue that they “passed” the test, and the officer is wrong in his conclusion.
The best defense is to throw out the notion that the driver has “passed” or “failed” the test. To do so gives credibility to the exercise and accordingly, to the Officer’s conclusions on the test.
After all, he administers these tests everyday, so who would know better if the driver passed or failed?
Luckily in Florida, the Florida Supreme Court decided in Meador v. State that the Field Sobriety Tests were not really tests at all; just everyday exercises. In other words, the evidence of the field sobriety exercises is not scientific testimony, and the cop is not an expert on the walk and turn and the stand on one two.
Accordingly, your attorney can use the Meador v. State ruling to limit the way the State and the arresting officer present their case. The words an officer uses are important, so by getting the judge to limit the words he uses to explain what happened, you can paint the picture that these roadside exercises should be looked at from a layman’s perspective (you, me, and the jury), and not from a pass/fail or otherwise scientific perspective.
When the jury does not hear the pseudoscience that the officer and the state prosecutor try to feed them regarding the field sobriety exercises, it becomes easier for a criminal defense attorney to help them see the exercises for what they really are: silly, abnormal exercises that are of little value.
Then, when it is no longer a “test”, your attorney can use the roadside exercises against the officer. If the officer wants to say you performed unsatisfactorily because you did not walk heel-to-toe, your attorney can defend your performance by showing that normal people in normal times do not walk heel-to-toe. Accordingly, you walked normally, which suggests your normal faculties were just fine at the time of the exercises, and therefore not DUI.
I Am Not Sure The Police Tested the Right Blood Sample
Legal Defense: Chain of Custody
If your blood has been collected, your DUI attorney must trace the trial of every “stop” that the blood went through from collection until analysis.
If the chain of custody of the blood is not substantially in compliance with best practices, your attorney may be able to successfully challenge the notion that it is indeed your blood, as opposed to someone else’s.
Similarly, your DUI defense attorney will check for fermentation in the blood sample, which can lead to artificially high results.
You Would Be Able to See I Was Sober, But the Officer Did Not Video Tape Me!
Legal Argument: Reasonable Doubt
It is true that the vast majority of the police agencies in Florida require videotaping of the DUI defendant at the roadside as part of their standard operating procedures.
Sometimes, an officer either intentionally or unintentionally fails to videotape the defendant.
Most cop cars have video cameras installed in the vehicle that either point straight ahead or can rotate side to side.
But sometimes, an officer either intentionally or unintentionally fails to videotape the defendant.
Juries are becoming more and more cynical of the officer who fails to video roadside. After all, most officers carry multiple phones with them, capable of videotaping right then and there.
Your DUI attorney can point out the reasonable doubt law to the jury that states they, “…can find reasonable doubt from the evidence, a conflict in the evidence, or lack of evidence…”.
Evidence that could have been and should have been preserved is a sufficient lack of evidence for the jury to find reasonable doubt in your DUI defense case.
Drugs will show in My Urine, But I Was Not Affected Them By The Time I Was Driving
Legal Defense: Urine Tests Shows Are Unquantified
What if the officer collected a urine sample from you, and you had taken marijuana or other scheduled drugs a few days ago?
Perhaps the scheduled drugs will show up in your urine screen, but you were not under the influence of the drugs at the time of the test.
First, urine screens show traces of drugs that are in the urine. But substances in the urine reflect what was once affecting the body, but is now being excreted.
In other words, the presence of drugs in the urine tells us only that the subject had been under the influence of drugs at some time in the recent past, but not necessarily at the time of driving.
In some cases, this defense can be built off of the testimony of the state’s own toxicology witness.
The better practice is to hire a forensic toxicologist or other appropriate expert to testify on your behalf. The expert can then render an expert opinion to the jury that he cannot tell by the urine screen results whether the client was under the influence of the drug(s) at the time of driving at all.
On closing argument, your DUI defense attorney can articulate to the jury that if an expert cannot tell one way or another if the defendant was influenced by the controlled substances, then the jury cannot conclude that the defendant was influenced by the drugs to the extent that his normal faculties were impaired.
And therefore, the verdict should be not guilty.
Someone slipped something in my drink and I was arrested for DUI.
Legal Justification: Involuntary Intoxication
The courts in Florida and elsewhere have held that involuntary intoxication is a valid defense to a DUI. For example, imagine the situation where a young female patron goes into a bar and orders a drink. Perhaps another patron spikes the drink without her knowledge.
If the young girl is intoxicated as a result of the spiked drink, then she has a defense that she was involuntarily intoxicated and therefore not guilty of drinking and driving.
For another example, imagine a situation where a young man had a headache, went into his drug cabinet, and took what he otherwise thought to be headache medicine. Unfortunately, a family member had mixed prescription drugs with non-prescription drugs, and the pill the young man took was really hydrocodone.
The young man then drives to the store, is pulled over, and charged with driving under the influence of controlled substances.
In this case, the young man has the defense of involuntary intoxication, as he did not intend to take (see Devers-Lopez v. State, 710 So.2d 720 (Fla. 4th DCA 1998).
Finally, consider the case of a you were lawfully prescribed controlled substances pursuant to a doctor’s care, and you were intoxicated as a result. Recent Florida case law suggests a defense of accidental intoxication as a result of a doctor’s prescription.
Note: Many prescription drugs include warnings against driving while taking medication, which may minimize the effectiveness of this defense in front of the jury.
In all cases, if you were intoxicated at the time of driving, but the intoxication was not “your fault”, consider an involuntary intoxication defense.
I Was Set Up By The Police
Legal Justification: Entrapment
In certain rare cases, the argument can be made that the police entrapped the driver into driving drunk. For this defense to be applicable, the defense will need to show that “but for” the police’s actions, the defendant would never have driven.
Entrapment, like all DUI defenses in florida, is case specific. Be sure to consult with your DUI lawyer if you feel this defense is applicable.
I Had to Drive Because It Was an Emergency!
Legal Justification: Necessity
What if you knew you were driving under the influence, but you felt there was no other choice but to drive to save yourself or another? The necessity defense may apply.
Florida law provides for the following four elements to establish duress or necessity:
- The defendant reasonably believed under the circumstances that an immediate emergency or danger existed which threatened significant hard to the defendant or another person;
- The defendant did not intentionally cause the emergency or danger; and
- The defendant had no way to avoid the emergency or danger except by committing the crime charged; and
- The harm that the defendant sought to avoid by committing the criminal act must outweigh the harm caused by committing the criminal act.
For example, consider the case where a husband and wife go out for drinks. The wife has one too many drinks, so the husband drives home. While driving, the husband has an intense pain shooting up his arm. He may be suffering a heart attack. The wife jumps into the driver’s seat, and takes the husband to the hospital. In the process, she is tailed by a cop, who ultimately charges her with DUI.
Also note the law has been held in Florida that necessity defense applies only to humans and not animals. (We pushed the envelope on this issue in the appellate courts in Brooks v. State, 2D11-2586)
My Breath Smells Like Alcohol Because I Am a Wine Taster
This list above is no way inclusive of all the possible defenses to your DUI. For example, our office recently was able to get DUI charges dismissed for a client who smelled of alcohol and exhibited signs of impairment.. but who was a wine taster and had been “on the job” before being pulled over.
In this case, we were able to retain an expert forensic toxicologist to testify that the absorption of alcohol through the bloodstream by swishing and tasting wine (but not actually swallowing) was minimal. This was enough to win the client’s DUI case.
If you need help with your DUI case, it’s always best to consult with an attorney. There is no substitute for a one-on-one consultation with a professional that can possibly turn your case around in your favor.
DUI Defenses are the strategies your defense attorney will use to try and get out of a DUI in Florida. Florida DUI Defenses are how your DUI Defense lawyer fights your DUI charges.
We want you to get a feel for how we fight your DUI charges, so below you will find a rundown of the different defense strategies we may be able to employ on your behalf:
Bad Cop Defenses
The police can’t pull you over willy-nilly.
They must have a legally sufficient reason to turn on their blue lights and make you pull your vehicle over.
There are three basic reasons that justify a police officer pulling you over.
- The cop has a legitimate belief that you are committing a crime
- The cop has probable cause that you have committed a traffic infraction
- The cop needs to pull you over for your best interests as part of a welfare check
The beauty of the criminal justice system is that we get to have an independent review from the Judge to make sure the cop really had a valid reason.
After all, the cop always thinks he had a valid reason to pull you over. He’s the one that stopped you!
But the Judge has the final say.
Common illegal stops in Florida include:
- Cop pulled you over when you weaving within a lane: You have not violated any laws if you weave within your own lane. And in isolation (we have to look at all the facts) weaving within your own lane may not be enough for a Judge to think the officer had a legitimate belief that you were committing a crime.
- Cop pulled you over for a cracked windshield
- A tag light is out when you have a middle tag light working
- Crossing a lane only one time
- Driving too slow
Waiting Too Long After Your Stop to Begin a DUI Investigation
Maybe the cop had the right to pull you over for a traffic ticket (say speeding), but he did not write you a ticket right away.
After a while, he decides to call another DUI cop out to do a DUI investigation.
There is good precedent (existing case law) in Florida that says if the first officer took too long to switch from traffic stop to DUI investigation, then your DUI case could be dismissed.
Bad Search After the Stop
The Fourth Amended protects you from unreasonable stops and searches.
If the cop violated your rights by going through your vehicle without probable cause, we may be able to suppress evidence found by the cop at any point after this illegal action.
By removing evidence from the State Attorney’s tool box, the case against you gets harder to prove, potentially leading to reductions to reckless driving and maybe even flat out dismissals.
What if the cop fails to read you Miranda after you’re arrested?
We know that your Miranda rights require the officer to read you Miranda before asking you any questions after you are arrested and in custody.
If the officer violates your 5th amendment right, we may be able to defend your DUI by knocking out any admissions or statements you made after the cop’s bad actions.
Failure to Videotape
In today’s day and age, it’s almost impossible not to get videotaped.
And we know the police are wearing body cameras .
DUI cops have standard operating procedures that require them to videotape you performing field sobriety exercises at the arrest scene.
What if they don’t?
In some circumstances (and in front of some Judges) we have a strong argument that your due process rights have been violated.
We can file a Motion to Dismiss your charge and ask the judge to throw everything out because your rights were violated!
Bad Cop – Internal Affairs and Disciplinary Proceedings
If the cop treated you badly, there is a good chance it was not the first time he has behaved that way.
We want to check the cop’s background record for any internal affairs reports or disciplinary proceedings.
Has the officer recently being caught lying in court? Have they been investigated for any sort of misbehavior?
This sort of evidence can positively impact your case.
Bad Driving Defenses
Sometimes, a cop will use the fact that you were driving poorly as an indication that you may be under the influence. However, bad driving does not equal DUI. The prosecution needs to prove beyond a doubt that you were under the influence while driving your car.
If bad driving is being used as evidence that you were impaired while driving, here are a few defenses your DUI attorney may use to help beat this charge:
Having a car with a bent frame or bad alignment can cause the vehicle to drift in either direction.
This may look like drunk driving to the officer, but in reality this may simply be a matter of your car needing to go to the shop.
Mechanic records, photos, and other documentary evidence can help your attorney prove to the prosecutor that your bad driving was due to a vehicle impairment and not drunk driving.
We all know the dangers of distracted driving, such as driving while texting or talking on the phone.
In fact, recent research suggest that driving distracted is more deadly than driving drunk.
While distracted driving is never encouraged, this can be used as a defense against a DUI charge.
Rushing to Somewhere
Being in a rush does not constitute driving under the influence.
If you were rushing, this may have contributed to your driving erratically. You should always drive safely no matter how much in a rush you are. However, if a cop suspects you’re driving under the influence, pointing out that you were in a rush may help explain the driving patterns the cop observed and defend you from the DUI.
There are a number of medical conditions that can lead to bad driving.
Extreme tiredness or sleep disorders such as narcolepsy can cause a driver to feel sluggish and become uncoordinated while driving. Diabetes can have a similar impact a person’s driving.
These conditions can lead to the sort of driving patterns that patrol officers may recognize as a sign of a person driving under the influence.
There is a difference between being impaired due to alcohol and being impaired due to a medical condition.
If you were suffering from a medical condition at the time of your arrest, your DUI defense attorney may be able to use this information as part of your defense strategy against the DUI charge.
Too Tired Defense
As mentioned above, sleep deprivation can contribute to a driver being pulled over.
Recent research from the National Highway Traffic Association shows that driving after 24 hours with no sleep slows down reaction time to a point that mimics drunk driving with a blood alcohol content over .10!
Being extremely tired while behind the wheel is different than driving under the influence. Your attorney may use this information in your defense against the DUI.
Car Accident Defenses
Failure to Switch From An Accident Investigation to DUI Investigation
So Florida thinks it is good policy for everyone to talk to the police after an accident. This way the cops can figure out what is going on.
But if there is a criminal investigation taking place, each person has the absolute right to not talk to the police.
So, what about when an accident investigation turns into a criminal investigation?
The officer must say certain things, including reading Miranda, in order to transfer an auto accident investigation into a criminal investigation.
If he does not uphold his responsibilities to make it clear the investigation is switching from an accident investigation to a criminal investigation, we may be able to get the case dismissed.
If you suffer head trauma as a result of a car accident, you may exhibit symptoms that an officer or witness may misinterpret as being a result of alcohol.
Head injury can cause you to be disoriented, confused, and uncoordinated. If you suffered head trauma during an accident, this can call into question the results of Field Sobriety Tests as well.
Your DUI Attorney can attempt to use your head trauma, along with other facts, as a defense for you in your DUI case.
You Acted Drunk Defenses
“Acting Drunk” is not proof of a DUI. Below are some defenses your DUI attorney can use if you are accused of “acting drunk” as part of your DUI.
The medical conditions mentioned earlier can have an impact not only on your driving abilities, but also on your behavior after the officer pulls you over.
Conditions such as Narcolepsy and Diabetes can result in slurred speech, red eyes, and confusion.
Some drivers suffer from inner ear disorders resulting in vertigo, which can impact balance and motor control.
Each of these symptoms could be misconstrued by a cop as a result of intoxication. Your DUI defense attorney will comb through police reports, camera footage, and your own recollection of the arrest to determine if medical conditions contributed to your being arrested for DUI.
As mentioned before, impairment due to medical conditions is very different from impairment due to alcohol.
Most drivers experience a great deal of nervousness when they are pulled over, especially if it has not happened before.
Police officers will often report that drivers fumbled around for documents, handed over credit cards rather than licenses, or dropped items into their floorboards.
Cops or the prosecution may try to use this as evidence that you appeared drunk. However, we all know that these sorts of mistakes can happen simply due to nervous excitement at being pulled over and placed in a tense situation.
Your DUI defense attorney will make sure the jury understands how your nerves could have impacted you at the time of your arrest.
High Breath Test Result Defenses
No 20 Minute Observation Period
Prior to administering a breath test, an arresting officer is required to continuously observe you for 20 minutes. This observation period is required by Florida law.
The purpose of this required observation period is to ensure that you have not ingested or regurgitated anything that could cause the breath test to return an incorrect result.
Your DUI defense lawyer will want to review your breath test results, the officer’s video footage, and your story of the arrest in order to determine if he can attack your DUI charge on the basis of the observation period not properly taking place.
If the observation period was not carried our properly, your defense lawyer can then ask that the results from your breath test be thrown out of court.
Breath Test Volume Was Not Reliable
In order to return an accurate result, a breath test must analyze a certain amount, or volume, of air from your lungs. Sometimes, drivers are unable to blow enough air into the machine for it to give an accurate reading.
Females are more likely than males to have smaller lungs, and thus blow less air into the machine. Furthermore, older drivers will tend to blow less air than younger drivers. There are also a number of medical conditions that could impact the volume of air you can blow into the breath test machine.
Breath Test Results Were Too Far Apart
A single breath test result is not enough to give a reliable reading of your alcohol level. For this reason, it is required that you be administered at least two breath tests, otherwise your results could be deemed invalid.
These two breath tests, however, must be given within 15 minutes of one another. If this did not occur, your DUI attorney could move to get the results of your breath test invalidated.
Your Medical Issues Affected The Machine
Breath test machines can return inaccurate results due to certain medical conditions. Make sure you tell your DUI attorney of any medical conditions you are effected by
Two common conditions that impact breath test results are acid reflux and GERD (Gastroesophageal reflux disease). These similar conditions essentially allow food/drink you consumed earlier (including alcohol) to end up back in your mouth and potentially impact your breath test results.
Your DUI defense lawyer will conduct an in-depth interview with you regarding your medical conditions, including acid reflux and GERD. If a medical condition inhibited the ability of the breathalyzer to give an accurate reading, your attorney can ask that the results of the test be thrown out of court.
The Breath Test Operator Was Not Certified
Your breath test can’t be administered by just anyone. The operator of the breath test machine must be certified to operate that machine. That certification must also be current at the time you were administered the breath test.
Your attorney will check the qualifications of the operator or officer who administered your breath test. If the operator was not properly licensed, this is grounds to question the validity of the breath test and ask that the results be thrown out of court.
Improper Machine Upkeep
If the breath test machine used to measure your alcohol level was not properly maintained, this fact could be used as part of your defense against the DUI.
Breath test machines are not perfect (by far). They need to undergo proper upkeep and be correctly calibrated in order to give reliable results.
There are periodic maintenance and testing requirements that must be followed in order to ensure that breath test machines are in working order.
If these requirements were not followed, then your attorney can use the lack of maintenance of the breath test machine as part of your defense against the DUI.
Blood Test Defenses
Blood tests are the most accurate way to measure BAC (blood alcohol content). However, there are a number of very specific steps that must be taken in order for the results of the blood test to be valid in the eyes of the court.
Here are a couple of the defenses your attorney could use on your behalf if you submitted a blood test and were charged with DUI:
Blood Sample Was Not Drawn By Qualified Professional
Only certain individuals can draw your blood. Doctors, registered nurses, and licensed practical nurses are permitted to draw blood for a blood test. Other certified professionals are also able to draw blood samples, but your attorney will want to ensure that their qualifications were current and valid at the time the sample was drawn.
If an untrained or uncertified person withdrew the blood, then your DUI attorney can request that the results of the test be thrown out.
Challenge Chain of Custody
In addition to ensuring that the blood is drawn by a certified professional, when you are being charged with DUI and submitting to a blood test, there is a strict chain of custody process that must be followed.
This means that your blood sample needs to be handled very carefully to ensure that it was not contaminated or altered in any way that could lead to an incorrect result once the sample is tested.
(There have been cases in which someone’s blood sample was accidentally switched out for someone else’s sample either at the police station or at the crime lab due to lax chain-of-custody).
The blood sample you give must be labeled properly. The sample must also be sealed for transport to the lab, and in many cases, the sample must also be refrigerated.
If, the chain-of-custody is not followed, or if the police or analysts are sloppy with your sample, then your DUI attorney will use this fact to attempt to get the results of the blood test thrown out of court.
If the results of the blood test are thrown out of court, then the prosecutor’s case against you is substantially weakened.
Retest Your Blood Sample
Your DUI lawyer can request to have your blood sample tested by an independent forensic toxicologist to confirm the results of the police crime lab blood alcohol test.
According to the law, the police should be preserving your blood sample, so in theory, the results from the independent test should match the results from the police crime lab.
If there is a discrepancy between the two results, this can call into the question the results or methods of the police blood alcohol test.
Urine Test Defenses
There are a number of ways your defense lawyer can attack the results of a urine test. As we mention in other posts, urine tests really are weak science at best, and the quality of urine tests is far lower than the quality of blood tests.
Urine is Waste Argument
One of the best defenses against urine test results is to point out that the fact that alcohol is present in your urine does not necessarily mean it is present in your system as well. Urine is a waste product, and whatever is contained in your urine has been removed from your body as waste.
If something, such as alcohol, is removed from your body, then it is no longer impacting you. This reasoning can be used to defend you against a DUI charge where urine testing was utilized.
The therapeutic effect refers to the fact that if you take a certain controlled substance on a daily basis, then you may develop a tolerance to that substance.
It will not effect, or impair, you as much as it would if it were your first time using that substance.
If a controlled substance is found in your urine, but you have developed a tolerance to that substance, then you were not impaired by that substance.
If you were not impaired, then you were not driving under the influence.
Fight the State’s Expert with Your Own Expert
The prosecutor will use expert testimony to argue the merits of the urine test and convince the jury that you were indeed guilty of DUI.
Your attorney can defend you against the prosecution’s expert by hiring an expert to be on your side.
A trained forensic toxicologist can explain the flaws of urine testing to the Jury. They can also describe just how long certain substances “stay in your system”. In some cases, a substance can stay in your system long after your “high” has dissipated.
In this case, you would not be responsible for a DUI simply because a substance was lingering in your system. The prosecutor would need to show that the substance was impairing your ability to drive while you were behind the wheel.
Refusal of Breath Test Results
Officer Did Not Read a Very Specific Warning to You
In Florida, when an officer asks you to take a breath test, he/she is also supposed to read you a very specific warning. This is known as the “Implied Consent Warning”.
The officer must read, word for word, the Implied Consent Warning. If they do not read this warning to you exactly as it is written, then that could be grounds to get your refusal thrown out of court and keep it from being considered by the jury.
“I Was Confused”: Confusion Doctrine
If an officer reads you the Implied Consent Warning right after reading you your Miranda warning, you could become confused by the seemingly conflicting messages of the two warnings.
Your Miranda is informing you that you have the right to remain silent until your attorney arrives. And the implied consent warning informs you of penalties that could result from refusing to comply with the breath test.
In Florida, officers must not read these two warnings to you back-to-back.
If you were confused by these two warnings, then this may be why you refused the breath test. And this fact can help get the breath test refusal thrown out by the judge.
“Weak Lungs” Defense
What if you try to blow into the breath test machine, but you can not blow enough air into the machine for it to register a result?
If you do this more than once, the officer may simply assume you are refusing the breath test by purposely withholding air.
But if you are suffering from a medical condition, you may just not be able to produce enough air for the breath test machine.
The officer will claim you were being uncooperative with the test, but your DUI defense lawyer can use the fact that your lungs were weak as a reason why the refusal accusation should not be allowed in court.
Being Rude is Not the Same as Refusing to Blow
In some circumstances, an officer may consider your rudeness to be an indicator that you are refusing a breath test.
In Florida, rudeness does not equal refusal.
There is case law to back this up. If an officer refuses you the opportunity to blow into the breath test machine based on your behavior, your DUI attorney can attempt to get the refusal thrown out.
Head Trauma and “Not In Your Right Mind”
What if you, the driver, were involved in an accident that resulted in head trauma? If you are suffering from head trauma, you may not be able to make a clear decision on whether to take the breath test or not.
In this case, your defense lawyer will ask the court to throw out, or disregard, your refusal.
Officer Talks Too Much
If an officer tells you things that are untrue after reading the Implied Consent warning, this may be justification to get your refusal thrown out of court.
There have been officers who misquote or exaggerate the amount of time your license will be suspended if you refuse the breath test.
If an officer gives you incorrect information like this, your defense attorney will use this as a defense on your behalf.
Cop did not Provide a Chance for Blood or Urine
If you request to take a blood or urine test after refusing the breath test, the officer must allow you that opportunity.
Sometimes officers are lazy or just unwilling to allow an alternative test.
If you request the ability to take a blood or urine test, and the officer denies that request, your attorney will certainly use this fact to request that your refusal of the breath test be suppressed.
You Acting Like a Jerk Defenses
Indignant at Being Arrested While Innocent
Being a jerk is not the same thing as driving under the influence.
While you should never behave in a belligerent manner toward an officer, being indignant after an arrest is not proof that you were guilty of DUI.
If your case goes to trial, your lawyer will make sure that the jury understands this.
Inability to handle Stressful situations well
Some of us are just nervous people. Stress impacts different people differently.
For many people, being pulled over and/or arrested is definitely a stressful situation.
If you are unable to handle stress well, this may lead to behavior that an officer considers to be an indicator of a DUI.
Your defense lawyer will not allow the prosecutor to use your inability to handle stress as “proof” of your DUI.
First Time Offender Defenses
Diversionary Program (County Specific)
The DUI Diversionary Program may be an option for you. The specifics of this program vary by county, but participation in a Diversionary Program can help you avoid losing your license or getting a conviction on your record. You may also be able to avoid getting points on your license.
As part of the Diversionary Program, you may be required to submit to random drug testing, pay a fine, and outfit your car with an ignition interlock device among other penalties.
If you are a first-time offender, then the Diversionary Program may be a good idea for you to consider.
The Role of Your Florida DUI Attorney In Your Defense
Drunk Driving defense is the most complicated criminal case to defend. The role of your Florida DUI Attorney is important as there are a number of variables to contend with:
- Police officers who muddle facts with pseudo-science.
- Machines that spit out numbers that can allegedly tell the alcohol level in your blood.
- 4th 5th, and 6th Amendment issues in almost every case.
Yet this is exactly why excellent Defense work on a DUI case can make all the difference.
Success on any of these fronts in a DUI case can start a domino effect that brings the State’s entire case against you tumbling down.
Our team of attorneys practice throughout the Tamp Bay area, including Hillsborough, Pinellas, and Pasco Counties.
What a Tampa Bay Area DUI Attorney Does
Interview Third Party Witnesses:
Your DUI lawyer has the opportunity to interview any civilian witnesses that might testify against you.
Interestingly, a number of civilian witnesses who might want to testify against you, actually do not understand Florida DUI law. (In Florida, you can have a drink and then drive, so long as you are not impaired). After understanding what the actual law states, some of the witnesses we have interviewed have admitted that they honestly couldn’t say for sure whether our client was impaired from alcohol.
Also, if a witness tells us something we would like to preserve, we can ask them if they would allow us to record them using a smartphone or other recording device. In some cases, we can even bring a court reporter along so that we can get their words in writing under oath.
Of course, not all witnesses will agree to an interview voluntarily. For these hesitant witnesses, we can ask the court to order a deposition so that we can compel them to chat with us prior to trial.
Sometimes, civilian witnesses are also involved in their own civil trial. This situation happens in accident cases a lot. If the civilian witness is trying to sue you and your insurance company, that is relevant information for us to know. This may give the witness an incentive to exaggerate the truth when describing whether or not you were driving impaired.
Interview police and state experts:
The most important witnesses in the DUI case are often the police and state experts. That means we have to interview them right off the bat.
Interviewing these witnesses involves more than just chatting with them.
Police have communication tapes from their radios, GPS data from their laptops and vehicles, and even videos from body cams and booking areas. We want to comb through all of this as we prepare your defense case.
DUIs can involve a bit of hokey science. For example, there is often a breath test operator who will try to testify as an expert even though he’s only an expert in a silly box that you blow into.
Other experts that the state may use include chemists in Tallahassee who analyze urine or blood draws looking for alcohol or control substances. (Click here to learn more about DUI Cases involving Urine Testing).
Your DUI lawyer is going to chat with all of these people before the trial to look for holes either in their testimony or in their credentials, training, and knowledge.
Fight with DMV to Invalidate Driver’s License Suspensions
A DUI case is usually two cases merged into one. In the big picture, the most important portion is the criminal case. And that’s what most of this article discusses.
But at the onset of the DUI case there is often a driver’s license suspension – the Department of Motor Vehicles is trying to take your driver’s license away because you were arrested and blew above a .08 in the breath test machine or you refused to blow it all.
A DUI lawyer can fight the suspension, and try to get it tossed out so you get your license back.
An additional benefit of this process is that the work your DUI attorney does in the driver’s license suspension case can help your lawyer learn how to better defend you in the criminal case.
The state attorney doesn’t come to the driver’s license suspension hearings. These hearings are done outside of court at the administrative office of the Department of Motor Vehicles.
Attend Arraignment Hearing
The arraignment hearing is the first opportunity for you to plead guilty or not guilty.
You don’t really want to go to that hearing and do-it-yourself do you? Of course not. Your DUI lawyer handles the arraignment hearing for you.
As a practical matter, usually, the DUI lawyer doesn’t actually attend. However he or she files paperwork with the court letting the court know that you are pleading not guilty, allowing the DUI lawyer the ability to fight your charge.
A good DUI lawyer will make every possible motion to suppress or dismiss in your case.
Because this is essentially a no-risk opportunity to try to either get the case dismissed or reframe the case by removing bad facts.
For the most part, if you are unsuccessful at a motion to dismiss or motion to suppress, you’re simply at the same place you started.
But if your DUI lawyer wins a motion to suppress, for example, the evidence is going to be kicked out of court and can’t be considered by the judge or the jury.
The more bad evidence we can remove, the better your case becomes.
While there is a heavy focus in this article on the courtroom stuff that lawyers are doing, one of the most important things a DUI defense attorney does is settlement negotiations.
Sometimes the difference between a DUI conviction and a reckless driving conviction is simply the skill of the DUI lawyer in negotiating with the state attorney.
With DUI charges, we are not only negotiating the actual charge, but often penalties associated with it. These penalties can include jail time, extended probation, and massive fines.
A DUI lawyer’s job is to minimize the penalties associated with the settlement.
How you can help your Florida DUI Attorney?
Facing a DUI charge stinks.
Your first thought might be that a DUI charge is something that should be simply left to the DUI lawyer to handle.
While it’s true that we will handle 99% of your DUI defense, there are certain things that you can do to help us best represent you and get you the best result possible.
Photograph the arrest area: while it might be painful to go back to the scene of your arrest, we always encourage our clients to go to the arrest scene to take photographs and video if necessary.
We have found over and over again that getting a client back out to the scene refreshes their memory in a way that can’t be done otherwise. The stronger your memory, the better you can articulate to us the details of what happened on the night of your arrest.
Help us find witnesses: often the third-party civilian witnesses that can help your case are going to be in your network of friends.
For example, perhaps you went out with some close friends the night that you were arrested. Perhaps they can testify that you really had no more than two drinks over the course of three hours.
Or maybe you went to the bar where your favorite bartender works. Perhaps he can testify favorably as to the amount of alcohol that you had that night.
Or perhaps friends that were in your vehicle with you could help corroborate your story in the case.
Photograph the car in question: you can take pictures if the vehicle is still in your possession. Be sure to photograph any parts of the vehicle that may point to potential issues with the vehicle.
For example, we’ve had cases where our clients were driving older vehicles with alignment issues. The alignment issue was pulling the vehicle to the right or left. Getting evidence that the vehicle pulls in this manner or has excessive miles on it can be absolutely fantastic for us when we are building a defense.
Give us authorization to obtain your medical records: Diabetes, vertigo, brain injury, and a litany of other medical problems can lead to false DUI arrests. We can use this to your advantage, but you need to help us get those medical records.
To do this, you’ll sign an authorization allowing us to pull certain medical records. You’ll also need to let us know what medical providers have your records. (Who is your doctor, pharmacist, or specialist?)
Review the videotape and other evidence from your arrest with us:
Much like how going to the scene of the arrest can stir your memory, we have found that when our clients watch videotape of the arrest incident, details come flowing back quickly and accurately.
Often, the very details of an arrest that you might think are inconsequential can indicate that an officer acted illegally or improperly. In many cases, if we could show bad behavior by an arresting officer, we can leverage that into a better deal for you (if not an outright dismissal).
Refused the breath test? Help us understand why:
More often than not, our clients refuse to blow into the breath test machine.
They have an absolute right to do so. However, the state attorney can argue that the reason you failed to blow into a breath test machine is that you thought you were guilty. They will argue that if you had blown, the result would suggest you were under the influence.
State attorneys call this consciousness of guilt. This means, the reason you didn’t blow into the breath test machine is that you had a guilty mind.
We find our clients often have perfectly reasonable rationales for not blowing into the breath test machine. Have you heard perhaps that these machines were unreliable? Tell us what was going to your mind when you failed.
Above all, remember that we are your attorneys. You can tell us anything even if it’s not going to help you. The evidence you are holding in your head may just be able to help you, but you will not know that unless you are open and transparent with us.
Read more about Refusing a Breathalizer Test in Florida.
How Much Will It Cost for Me to Retain Your Services for My DUI Defense?
Preliminarily you can chat with an attorney in our firm at no cost to discuss the specifics of your case and develop a game plan.
This DUI defense planning consultation is done over the phone, skype, or in the office.
We provide fixed fee pricing for DUI defense.
This is an agreed upon price that will take you from the beginning to the end of your case. We charge a fixed fee of $3,500 for first time DUI representation. There is an additional fee to handle repeat DUI’s and Felony DUI’s