How to Beat Your DUI Case

We are extremely proud of the fact that Leppard Law has the #1 highest DUI case dismissal rate in Orange County, Florida. Naturally, we are often asked “How do I beat my DUI case?”

If you have been arrested for a DUI in Florida,, you are probably stressing out right now. What people don’t realize is that DUI are the only opinion crime. A crime for which you can be arrested based upon one single cop opinion that you seem impaired. Because of this fact, DUI law is probably the most complex and intricate area of law. Cops are human and they mess up all the time. Just because you got in a crash or blew substantially over the legal limit does not mean that you should automatically be convicted. (If you don’t believe us–please see our recent DUI case results for numerous examples!)

By hiring a quality DUI defense lawyer who can protect your rights, there are a host of ways your case may be defendable. We hope this extensive list will show that there are many ways to attack a DUI charge. Your defenses are often limited only by the skill and experience of the DUI attorney you hire.

Table of Contents

· The Traffic Stop
· Field Sobriety Exercises (FSES)
· The Arrest
· The Blood-Alcohol Test (Breath, Urine, or Blood)
· Motions
· Defenses and Trial
· Conclusion

THE TRAFFIC STOP

A driver cannot be stopped unless the officer has reasonable suspicion that a crime has occurred, is occurring, or is about to occur, or probable cause that a traffic law has been violated. An officer must have more than a “mere hunch”; the officer must be able to articulate what law was being broken, and what specific observations were made to think that the driver was breaking the law. This is because the Founding Fathers believed that the government should not be able to stop someone for any reason (or no reason at all), so they ratified the Fourth Amendment to prohibit the police from engaging in “unreasonable searches or seizures.”

If the court finds that the initial traffic stop was illegal, then everything coming after that will be “suppressed,” meaning it is thrown out and the prosecutor cannot use anything found or observed after the traffic stop against you.

(The same standard applies when you are not driving. Police cannot detain you—meaning a reasonable person in your situation would think he or she is not allowed to leave—without a reasonable suspicion that you are involved in criminal activity.)

LANE-WEAVING / FAILURE TO MAINTAIN A SINGLE LANE

There is no law that prohibits a driver from weaving within a single lane (i.e. without crossing into other lanes). And when it comes to weaving between multiple lanes, there is no traffic violation unless the lane-weaving places other traffic in danger—meaning there can be no traffic violation if there are no other cars around. See § 316.089, Fla. Stat.
That being said, if the lane-weaving is egregious enough, a court may find that the officer had a reasonable suspicion that the driver was drunk even though there were no technical traffic violations. This finding is fact-specific; weaving once into another lane before correcting the car would probably not be enough for a traffic stop, but weaving repeatedly over the course of a mile could be a different story.

FAILURE TO USE A TURN SIGNAL

Like the statute for failure to maintain a single lane, the turn-signal statute only makes it a traffic violation to turn without using a signal if other traffic is affected by the movement. § 316.155, Fla. Stat. The Florida Supreme Court has interpreted this statute to mean that a driver is required to use a turn signal only when another vehicle will be affected by the turn. State v. Riley, 638 So. 2d 507 (Fla. 1994). Therefore, an officer cannot stop you for failing to use a turn signal if other traffic is unaffected.

ONE HEADLIGHT OR TAIL LIGHT OUT

Just because one of your head lights or tail lights is out, that does not necessarily mean you are allowed to be pulled over. The law only says that two of these lights are required. But some modern vehicles are equipped with four lights now. If you’re driving one of these cars and a light is out, you’re not breaking the law.

SPEEDING

There are multiple grounds for contesting a stop based on speeding. Your attorney can move to throw out evidence of your speed if the prosecutor fails to prove that the officer’s speed-detection equipment is certified and complies with statutory standards.

Even if your speed gets in, that proves nothing by itself. For example, the officer might only testify that you were driving 60 miles-per-hour on I-4. Well, on some parts of I-4 that is actually under the speed limit. If the prosecutor fails to bring in the speed limit or otherwise show why your speed was illegal, then the prosecutor cannot prove your traffic stop for speeding was lawful.

NONEXISTENT TRAFFIC VIOLATIONS (E.G. WIDE U-TURNS, WIDE LEFT TURNS)

Yes, this happens. Our firm has represented multiple clients who were pulled over for changing lanes while making a left turn. The issue? It’s not illegal! Unlike a right turn, a left turn can be made while changing lanes so long as it is done safely. See § 316.151, Fla. Stat. Likewise, there is nothing illegal about making a U-turn into the far right lane, again as long as it is done safely (and there is no sign prohibiting a U-turn). § 316.1515, Fla. Stat.

ANONYMOUS TIP OF DRUNK DRIVING

Often, a car cannot be stopped simply because an anonymous tipster reported that the driver was drunk. When the tipster is anonymous, the officer cannot pull you over until the officer 1) verifies that you are the suspect described in the tip, and 2) independently observes what could be drunk driving.

When the tipster is not anonymous, this may in some cases provide enough reasonable suspicion for a traffic stop. But even then, the tipster must provide the same information that an officer would to justify a stop. For example, the tipster cannot merely allege that the suspect was drunk driving, but must articulate what observations he or she made to reach that conclusion.

SLEEPING IN CAR

It’s a common situation: the police find someone who looks passed out in their car and won’t wake up when they knock, so the officers open your door and smell the odor of alcohol. Before you know it, you’re under arrest for DUI.

Police might suspect you are DUI, but because they don’t have enough evidence to intrude in your vehicle, they might claim that they were acting out of concern for your well-being. This is why you need a skilled advocate who can reveal the officers’ true motives.

Even if the case is not thrown out, this situation can form a good trial defense. Everyone knows that people are groggy when they first wake up. How can you expect someone to perform well on complicated field sobriety exercises after waking up? (And that’s not to mention how nerve-shattering it must be to wake up and be surrounded by police officers!)

ILLEGALLY PROLONGED STOP

Even if the initial traffic stop is valid, the U.S. Supreme Court has been clear that the stop can’t take any longer than what is reasonably necessary. This means, for example, that police can’t delay the stop for a K-9 unit or a DUI unit to respond unless they have reasonable suspicion; and even with reasonable suspicion, the police must be reasonably diligent in how fast they process the alleged violations.

OFFICER OUTSIDE JURISDICTION—CITIZEN’S ARREST

Law-enforcement officers have limited jurisdiction, or power to detain and arrest suspects. Officers from a municipal police department (like the Orlando Police Department) only have jurisdiction within their respective city, while sheriff’s deputies (e.g. the Orange County Sheriff’s Office) only have jurisdiction within the county. The Florida Highway Patrol, which are Florida’s state troopers, have statewide jurisdiction. It is generally illegal for a municipal police officer or sheriff’s deputy to detain or arrest someone outside the officer’s or deputy’s jurisdiction.

There are some exceptions. First, officers can act outside of their jurisdiction if they are in “fresh pursuit”—that is, if they chase someone for a crime committed in their jurisdiction and the chase leads them outside the jurisdiction. Second, officers from different jurisdictions may enter a mutual aid agreement, e.g. Polk County Sheriff’s Office might enter an agreement with and request help from Osceola County deputies; but the officers must act in strict compliance with the written terms of the agreement. And even if no exception applies, an officer outside his or her jurisdiction can make a citizen’s arrest for a felony or a breach of the peace (including DUIs) like any other person. But the officer cannot act under “color of law,” or use his police powers to make a citizen’s arrest.

ILLEGAL DE FACTO ARREST (HANDCUFFS, TRANSPORTATION, ETC.)

We’re all familiar with a formal arrest, where the officer takes out the handcuffs and says you’re under arrest. But even if police aren’t trying to make an arrest, their conduct might be so overbearing that the situation turns into what is called a de facto arrest (an arrest in fact). Using handcuffs, for instance, can turn an ordinary traffic stop into a de facto arrest unless police can show there was a reason for needing them, such as the driver or passengers being belligerent. Like with a formal arrest, any evidence that comes after a de facto arrest without probable cause should be thrown out.

STOP FOR TRAFFIC INFRACTION ON PRIVATE PROPERTY

In some circumstances, police might not be able to stop you for a traffic violation if you’re on private property. Bear in mind that police can enforce traffic laws “wherever the public has a right to travel by motor vehicle,” so being in a Wal-Mart parking lot doesn’t make you immune from traffic laws. § 316.640, Fla. Stat. But if you’re in an apartment complex where you can only get in with a gate code, that might be a different story.
Even if you are in a location open to the public, you may be free from being stopped for what would otherwise be a traffic violation. For example, police can only stop you for running a stop sign if it is an “official traffic control device” (official signs will have a sticker from the Department of Transportation on the back). Stop signs on private property often are not official devices, so your attorney can argue that there is no legal basis for the stop. (This may not insure you from civil liability if you cause a crash by running an unofficial stop sign, though.)

IN-SQUAD VIDEOS

Officers are increasingly being equipped with “dash cams” (dashboard-mounted cameras) and body-worn cameras, recording the suspect’s driving, behavior, and performance on field sobriety exercises. Although a police report usually only shows what the suspect did wrong, the video shows a more complete picture and also shows what the suspect did right. And it is not uncommon for the video to outright contradict the officer’s report or testimony.

FIELD SOBRIETY EXERCISES (FSES)

Field sobriety exercises, or your refusal to perform them, can be the most damaging evidence used against you. Fortunately, they are also open to a wide variety of attacks. Following are some strategies your a Florida DUI lawyer can use to either have field sobriety exercises thrown out, or discredit them at trial.

REASONABLE SUSPICION TO REQUEST FSES

Even if an officer has reasonable suspicion to stop you, the officer cannot request that you perform field sobriety exercises without additional reasonable suspicion that you are specifically impaired by alcohol or drugs.
What overzealous officers often forget is that it’s not a crime to drink and drive in Florida. It becomes a crime only when someone drives while under the influence “to the extent that the person’s normal faculties are impaired.” § 316.193, Fla. Stat. Thus, Florida courts have made it clear that the odor of alcohol alone does not justify a request for FSEs, because that only shows that someone has been drinking at some point. Police have to go beyond showing that a suspect merely drank alcohol, but must also articulate why they think a driver is too impaired by the alcohol to properly operate a vehicle.

CRASH DOES NOT EQUAL IMPAIRMENT

If you’re involved in a crash and an officer has any suspicion that you may have been drinking, the next step is usually to request FSEs. But this ignores the fact that sober drivers get into crashes all the time. And because your statements may be inadmissible under the accident-report privilege (see below under “Arrest”), the police might not be able to show that you caused the crash or that your driving was impaired before the crash.

COERCED CONSENT TO PERFORM FSES

FSEs are voluntary—that means that an officer cannot order you to perform them (without havin probable cause for arrest), but must ask your consent to do so. If you are coerced to perform FSEs, they will usually be thrown out. And in turn, the prosecutor might not be able to prove probable cause for the arrest without the FSEs, which means the arrest and everything after is thrown out as well. This means that your breath test result or refusal to provide a breath sample is also thrown out of court. This is often how we get the entire DUI case dismissed.

CLIENT NOT A GOOD CANDIDATE FOR FSES – NO SCREENING QUESTIONS

Before an officer administers FSEs, the DUI cop is supposed to ask a series of “screening questions” to make sure that a suspect does not have any physical or mental conditions that would affect the exercises—e.g., whether the suspect has diabetes, whether the suspect wears glasses or contacts, or whether the suspect has any injuries or deformities that would impair his or her performance. If an officer forgets to ask these screening questions, or fails to take the suspect’s answers into account, your defense lawyer can argue that the FSEs were compromised.

STANDARD FIELD SOBRIETY EXERCISES ARE INACCURATE

FSEs are notoriously inaccurate at determining whether someone is impaired by alcohol or drugs—the Walk and Turn and the One Leg Stand exercises even when administered by the most experience DUI cop under ideal circumstances are only about 65% accurate in determining impairment in healthy people. The exercises are further compromised when they are administered to unhealthy people—people with any number of medical conditions, those who are overweight, the elderly, and so on.

NON-STANDARDIZED FIELD SOBRIETY EXERCISES

Only three exercises—the Walk and Turn, the One Leg Stand, and the Horizontal Gaze Nystagmus Test (HGN)—are standardized, and the HGN is usually inadmissible, which brings the number of standardized exercises against you to two! Other exercises such as the Rhomberg Alphabet (reciting the alphabet) and the Finger to Nose are not considered standardized FSEs.

FIELD SOBRIETY EXERCISES MUST BE PROPERLY CONDUCTED

Even if you are the healthiest individual, the FSEs do not validly test for impairment unless they are properly administered. Rookie officers especially will often make many mistakes in conducting FSEs or will fail to demonstrate them.

THE HGN (“EYE TEST”) IS USUALLY INADMISSIBLE

The Horizontal Gaze Nystagmus test, also known as the HGN or “eye test,” is a supposedly scientific test to determine your level of impairment based on how your eyes follow a light. But because of its scientific nature, the HGN is usually not admissible in court unless the officer is a certified Drug Recognition Expert—and very few DUI cops are.

FSES ARE NOT SCIENTIFIC

With the exception of the Horizontal Gaze Nystagmus test (which is usually inadmissible anyway), FSEs are not scientific. Thus, police cannot describe FSEs as “tests” or claim that someone “passed” or “failed” them. They are exercises, not tests, and police officers can only testify as to what actions you took during the FSEs like any other person.

No ADHD vs ADHD

PSYCHIATRIC PROBLEMS (E.G., ADHD)

Field sobriety exercises are designed to test one’s ability to multitask and follow complex instructions. The problem is that people with certain psychiatric disorders, such as ADD and ADHD, may have an extremely hard time performing these functions while sober. The burden is on the prosecutor to prove beyond a reasonable doubt that you are impaired specifically by alcohol or drugs, and not by a mental condition or prescribed medication. If you have a mental condition like this, the FSEs provide good ground to challenge the prosecutor’s case and argue that the jury has no way to tell whether your performance on the FSEs was the result of alcohol impairment or merely based upon a natural inability to follow these extremely difficult instructions under very stressful conditions.

REFUSAL TO PERFORM FSES IS INADMISSIBLE AS “SAFE HARBOR”

If you refuse to perform FSEs, your refusal may be inadmissible as “safe harbor.” This applies when police fail to inform you that there are negative consequences to refusing FSEs, such as the fact that the refusal can be used against you in court or that police can use your refusal to justify the arrest. According to the courts, the idea is that it is unfair to introduce the refusal when you did not know it could be used against you—thus, someone who is unsure whether he or she should submit to FSEs might find “safe harbor” in simply refusing them.

THE ARREST

The arrest also provides fertile grounds for challenging your DUI. If the court finds that your arrest was illegal, then everything coming after it, including the blood-alcohol test or your refusal to submit to it, is thrown out.

LACK OF PROBABLE CAUSE TO ARREST

An officer must have probable cause to make an arrest, which is a higher standard than reasonable suspicion. (Reasonable suspicion is required to merely start a DUI investigation and ask you to the circus performances that they call “sobriety exercises.”

ARREST PROHIBITED BY STATUTE

Officers in Florida are prohibited by statute from making warrantless arrests for misdemeanors (including DUIs) unless the officer personally observes every element of the offense. § 901.15, Fla. Stat. For example, if an officer responds to a tip of a drunk driver but finds the suspect away from the car, the officer cannot arrest the suspect because the officer did not observe the suspect driving. But there are two important exceptions to this rule.

First, the rule does not apply when a private citizen makes a citizen’s arrest. Second, another statute allows police to make a warrantless arrest when the suspect is involved in a crash (even if the suspect didn’t cause it). § 316.645, Fla. Sat. In that case, an officer only needs probable cause to make an arrest, even if the officer did not personally witness the suspect driving.

ACCIDENT-REPORT PRIVILEGE

In Florida, any person who is involved in a crash has a duty to report the crash to police. But because this information can be incriminating—for example, by showing that you were under the influence when you drove—Florida law has established an “accident report-privilege” to protect your Fifth Amendment right against self-incrimination. § 316.066(4), Fla. Stat. The Florida Supreme Court has interpreted this statute to mean that when you are involved in a crash, your statements cannot be used against you unless the officer 1) explicitly tells you he is done investigating the crash and is now beginning a criminal investigation (known as “switching hats”), and 2) reads you a Miranda warning. Police will often forget to meet one or both of these requirements, which means your statements are thrown out.

FUNCTIONAL CUSTODY FOR MIRANDA PURPOSES

Miranda is one of the most misunderstood legal concepts. Police are not required to read you a Miranda warning unless you are arrested, or in custody, and they interrogate you (with the exception of the accident-report privilege, above). So typically, any statements you make during a traffic stop are fair game because you are only detained, not in custody.
However, this can change if the circumstances of your traffic stop would lead a reasonable person to think that he or she is essentially in custody. For example, some courts have found that a Miranda warning is required if an officer orders you out of your vehicle and questions you about drinking, even though you are not formally arrested yet.

BARE ASSERTIONS

All too often an officer will only make bare assertions in the report that a defendant was impaired, without explaining in detail how the officer reached that conclusion. The courts have held that the prosecutor needs more than conclusory statements to support an arrest. Thus, a good defense lawyer can argue that the prosecutor cannot prove the arrest was legal since the officer fails to explain how he obtained probable cause.

NON-POLICE VIOLATING FOURTH AMENDMENT

Although the Fourth Amendment’s protection against unreasonable searches or seizures is often associated with police, the courts have held that it applies to all government agents. So even if Fire Department detains or arrests you (claiming that it is for your well-being, for example), we can move to get the evidence thrown out because they violated the Fourth Amendment.

POLICE USING PRIVATE CITIZENS AS GOVERNMENT AGENTS

One primary limitation on the Fourth Amendment is that it only applies to government action—usually searches and seizures by police. If an ordinary person violates your privacy and finds evidence that incriminates you, the Fourth Amendment generally does not apply and the evidence is admissible.
But there is an exception when such a person is working at the direction of police. After all, the Fourth Amendment would be meaningless if police could have private citizens do what the police could not do themselves. In such a case the private citizen would be considered an agent of the government (the police), and the Fourth Amendment would apply.

SHOW-UP IDENTIFICATION

If someone witness a crash and the driver flees before police arrive, the police will often rely on a show-up identification. This entails bringing the suspect back to the scene and asking the witness to determine if the suspect was the driver. The problem with this method is that it is highly unreliable. Showing a single person to a witness and asking if he is the suspect, instead of using a line of potential suspects, is inherently suggestive. The show-up is even more unreliable if the suspect is handcuffed and standing next to police.

ILLEGAL HOME ENTRY

The United States Supreme Court has repeatedly held that the home is “first among equals” when it comes to the Fourth Amendment’s protections against unreasonable searches. While police can usually search your car, for example, without a warrant if they have probable cause, they cannot enter your house even with probable cause unless they have a warrant. For that reason, we have had multiple DUI clients get their cases dismissed because police chased our clients into their homes.

FAILURE TO READ A MIRANDA WARNING FOR POST-ARREST QUESTIONING

Once a suspect is arrested by police, the prosecutor cannot use the suspect’s statements against him or her until police have read the now-famous Miranda warning. The Miranda warning was established by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966).

THE BLOOD-ALCOHOL TEST (BREATH, URINE, OR BLOOD)

Florida and federal law imposes strict requirements that police must follow before they may administer a test to determine your blood-alcohol content (BAC). Failure to follow these requirements results in the test being inadmissible. Even if they are introduced at trial, blood-alcohol tests are not always reliable—Intoxilyzers (breath-test machines) are notoriously finnicky—which opens them up to myriad challenges.

BREATH TESTING IS INACCURATE

Intoxilyzers are known to be inaccurate—they can vary wildly in how they report blood-alcohol levels and are unable to distinguish between different types of alcohol. If a DUI goes to trial, it is usually a good idea to hire an expert who will expose the unreliability of the breath test.

BREATH TECHNICIAN UNLICENSED

A Breach Technician must have a valid, unexpired license to operate the Intoxilyzer, else the breath-test results are inadmissible.

FAILURE TO CONDUCT THE OBSERVATION PERIOD

Florida law requires that the suspect be observed for 20 minutes before the breath test. The purpose of this observation period is to ensure that the suspect does not take anything by mouth or regurgitate, which could leave “mouth alcohol” and falsely elevate the breath-test results. If police fail to follow this rule, the breath test results are thrown out because they are unreliable.

POST-DRIVING ABSORPTION OF ALCOHOL

The prosecutor must prove that you were impaired by alcohol or drugs at the time that you were driving or in actual physical control of a vehicle. But alcohol continues to absorb into the bloodstream for some time after drinking, before it is filtered from the body. Thus, if you consumed alcohol shortly before driving, by the time you take a breath test your blood-alcohol level may be significantly higher than what it was at the time that you were actually driving.

BREATH MACHINE NOT PROPERLY OPERATED

Florida law, as well as the Intoxilyzer’s manufacturer’s instructions, requires the breath technician to follow specified procedures when procuring breath samples. If the breath technician deviates from these protocols, the breath-test results may be compromised.

DENTAL WORK

If you recently had dental work done or are wearing dentures when you take a breath test, small amounts of “mouth alcohol” can be trapped in your teeth. Mouth alcohol is known to potentially cause a falsely elevated BAC level.

RFI (RADIO FREQUENCY INTERFERENCE)

Radio Frequency Interference, or RFI, can result when an electronic device like an Intoxilyzer picks up radio waves from devices like radios, police station dispatchers, police transmitters, and radar transmitters. This RFI, in turn, can cause the breath test to be inaccurate. Although Intoxilyzers are equipped with RFI detectors, we can argue that the detector was malfunctioning or failed to detect interference, causing a falsely elevated BAC result.

COERCED TEST

Blood, breath, and urine tests are governed by Florida’s Implied Consent laws, whereby a driver consents to submit to lawful tests in return for the privilege of being licensed to drive. But the Implied Consent laws also give drivers the chance to refuse these tests, with harsher penalties. Thus, a DUI suspect must have the option to either take or refuse the test. If an officer forces a suspect to take or refuse a blood-alcohol test, or misrepresents the consequences of either, that submission or refusal to submit to the test will be inadmissible.

REQUESTING URINE WHEN POLICE ONLY SUSPECT ALCOHOL

When a suspect takes a breath test and blows below the legal limit, police will commonly ask for a urine test. But Florida law prohibits officers from requesting a urine test under Implied Consent unless the officer has probable cause that you are impaired by drugs, as opposed to alcohol. If police have you take a urine test but they only think that you are impaired by alcohol, we can move to suppress the test.

BASHFUL KIDNEY- INABILITY TO URINATE NOT REFUSAL

If an officer has probable cause to believe you are under the influence of drugs (as opposed to alcohol) he can ask you to provide a urine sample. But not everyone has the ability to urinate on command. If you are physically unable to provide a urine sample, then we can seek to exclude the evidence of this urine request, thereby eliminating what is likely the most important evidence in many DUI drug cases.

REASONABLE ASSISTANCE FOR INDEPENDENT BLOOD DRAW

If you are arrested for DUI and submit to a breath test, Florida law obligates police to not only allow you, but assist you, in obtaining an independent blood draw within a reasonable amount of time if you so request. If police do not honor your request, then your breath test is thrown out.
A word of caution: this rule only applies if you actually submit to a breath test requested by police. If you refuse to provide a breath sample, the police do not have to honor your request for an independent test.

FORCED BLOOD DRAWS

Under Florida law, one of two conditions must be met before an officer can make you submit to a blood draw. The first condition is if you are involved in a crash and cause death or serious bodily injury to a person (including yourself), and police have probable cause that you are DUI. In that case, the statute allows police to forcibly take a blood sample. § 316.1933, Fla. Stat.

The second condition is if 1) you appear for treatment at a medical facility, 2) it would be impossible or impracticable to administer a breath or urine test, and 3) there is probable cause that you are DUI. In this scenario, police cannot forcibly take your blood if you refuse, but you will then be subject to a driver’s license suspension. § 316.1932, Fla. Stat.
If these conditions are not met and you do not voluntarily submit to a blood draw, then the blood test is not admissible in court. (Whether these statutes are constitutional is up for debate in light of the Supreme Court’s decision in Birchfield—see “Warrantless Urine and Blood Tests” below.)

WARRANTLESS URINE AND BLOOD TESTS

The U.S. Supreme Court recently decided Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), where it held that a warrantless breath test is legal under the Fourth Amendment, but a blood draw cannot be compelled without a warrant. The Court considered the more invasive nature of a blood draw, which involves piercing the suspect’s skin with a needle, and how much more personal information is contained in blood than in breath.
The Court did not address urine tests, which fall between breath tests and blood tests in how invasive they are, so the legality of warrantless urine tests in the wake of Birchfield is an open question. But several Florida courts have held that they are illegal, reasoning that urine tests are more similar to blood draws—which were disapproved of in Birchfield when conducted without a warrant—because of the information police can obtain from urine, rather than breath tests which only measure blood-alcohol content.

BLOOD TESTS NOT PERFORMED PROPERLY

If police draw your blood, they have to follow specific rules to preserve and analyze the sample in order for it to be reliable. Conversely, blood tests performed by hospital staff can be unreliable because the staff is testing the blood for purposes of treatment, not to determine the suspect’s precise blood-alcohol level for persecution.

FAILURE TO READ IMPLIED CONSENT FOR REFUSALS

Florida law provides that your refusal to submit to a blood-alcohol test cannot be used against you unless police read what is called the “Implied Consent warning,” which states that your driver’s license will be suspended for at least one year for refusing the test. If you refuse the test and police fail to read the Implied Consent warning, the judge will prohibit the prosecutor from using that refusal against you in court.

RECANTED REFUSAL

If you initially refuse a blood-alcohol test but then change your mind, yet police won’t let you take the test, we might be able to keep the refusal out of court. Whether this challenge is successful depends on each case’s circumstances, including how long it took to change your mind and how inconvenient it would have been to restart the test. If we can show that there was no reason for police to not let you change your mind, the judge might agree that it would be unfair to use your initial refusal against you.
Even if we cannot get the refusal thrown out, we can argue that your attempt to recant your refusal indicates that you had a clean conscience.

CONFUSION DOCTRINE

Interestingly enough, the police often read you your right to remain silent and right to an attorney during questioning. Shortly thereafter, they then question whether you are willing to provide a breath sample. If you ask for an attorney (which happens very frequently) they will tell you that you have no right to one. This contradicting sequence of events can naturally lead to a confusion. If you make this confusion known to the police at the time of the breath test and subsequently refuse to provide a sample, this can lead to this evidence being suppressed (thrown out) in your case.

MOTIONS

Motions are what move the case along before trial. A motion is simply a request for the judge to take a certain action or make a certain decision. S DUI law is perhaps the most complicated area of criminal law. We find that cops, even experienced ones, tend to make at least one mistake in almost every DUI case that we handle. For this reason, we file motions in almost every one of our DUI cases. These motions are often the best way to get a case reduced or dismissed without the risks of having to go forward on a jury trial (and without the possibility of potential jail time.)

MOTION TO SUPPRESS

A motion to suppress the evidence is the device a good DUI defense lawyer to show that your constitutional rights were violated. The motion can challenge the lawfulness of the initial traffic stop, the arrest, any searches performed by police, any confessions you made, and so forth. A hearing will be held on the motion to suppress, and if the judge finds that any of these actions were illegal, the evidence will be thrown out.

In addition, any evidence found as a result of an illegal search or seizure is considered “fruit of the poisonous tree” and will be thrown out as well. Thus, if the judge finds that there was no basis for the officer to pull you over, then everything coming after the stop—including any observations made by the police, any statements you made, and any breath, blood or urine test (or refusal to submit to such a test)—is inadmissible.

MOTION TO DISMISS

Your defense lawyer can also file a motion to completely dismiss the case, but only on limited grounds. For example, your lawyer can argue that the prosecutor cannot make out a prima facie case—meaning that even if everything the prosecutor and police say are true, it does not show that you committed the crime you were charged with. A motion to dismiss can be filed for other reasons, such as for immunity granted to the defendant, double jeopardy (trying the defendant for the same crime twice), failure to provide a speedy trial, or misconduct by the police or the prosecutor (this last one rarely succeeds, and will only be granted in the most egregious circumstances). Our clients often ask us about a motion to dismiss, but really what they are thinking about is a motion to suppress (which ends up in the DUI case being dismissed due to lack of admissible evidence.)

MOTION TO COMPEL / MOTION FOR SANCTIONS

A motion to compel can be filed to notify the Court that the prosecutor has not satisfied discovery obligations (to provide evidence) or has ignored a court order to provide evidence to the defendant. If the prosecutor or police repeatedly or blatantly ignore court orders, your criminal defense lawyer can move for sanctions in any number of forms, including suppressing evidence, excluding the offending witness from testifying, and granting a mistrial.

MOTION IN LIMINE

This motion asks the judge to decide that certain evidence is admissible or inadmissible at trial. It is similar to a motion to suppress, but while a motion to suppress usually challenges an illegal search, seizure, or confession for constitutional violations, a motion in limine seeks to excludes evidence on evidentiary grounds (e.g. unreliable or privileged evidence). Think of it as a preemptive objection; a motion in limine can be preferable to an on-the-spot objection because it seeks to exclude evidence before it is brought up at a DUI trial.

DEFENSES AND TRIAL

NEGOTIATING WITH THE PROSECUTOR

One of the primary advantages of having a private lawyer is that the lawyer can talk to the prosecutor for you. Masterful negotiation skills are perhaps the most important weapon in a DUI defense attorney’s arsenal. A skilled defense lawyer can convince the prosecutor to either drop the case or give you a good plea deal.

MITIGATION

In sensitive cases where a client has a lot on the line, we have made mitigation presentations prior to trial. These are informal presentations we give to the prosecutor (and occasionally the judge) that describe your story and your contribution to society, in order to convince the prosecutor to drop the case or offer a better plea deal. We seek to tell your story, demonstrate the positive impact you have made on your family and society–thereby showing the prosecutor who you really are–not just the person they see on a piece of paper.

BRADY MATERIAL

In the landmark United States Supreme Court case of Brady v. Maryland, 373 U.S. 83 (1963), the Court held that the government must show the defendant any material it has that would tend to show that the defendant is not guilty or that could lessen the defendant’s sentence. The Court stressed that society’s interest in prosecuting criminals must not overcome the interest in fair trials. Because of Brady and similar rules of criminal discovery (the obligation to provide evidence to the other side), the defendant is entitled to evidence that would prove his innocence.

OBJECTIONS

Should the case ultimately go to trial, one of the most invaluable benefits of having a defense attorney is the attorney’s ability to make objections. An objection challenges certain evidence from being used at trial. A skilled defense lawyer will be on his or her guard during the entire trial to make objections based on any number of grounds, from violations of the rules of evidence (e.g. if the evidence is irrelevant or inadmissible hearsay), to improper comments on the defendant’s right to silence and presumption of innocence, to constitutional violations from an illegal search or seizure.

IT IS NOT ILLEGAL TO DRINK AND DRIVE

Again, there is no law against drinking and driving; it is illegal to drive while your “normal faculties” are impaired by alcohol or drugs. Your admission to drinking while driving is usually not enough to prove a charge of DUI. The prosecutor must prove beyond a reasonable doubt that your drinking had impaired your ability to operate a vehicle and perform other normal tasks.

MEDICAL RECORDS

INDEPENDENT WITNESSES

Independent witnesses, especially in crash cases, can be invaluable in contesting the prosecutor’s case. An independent witness could provide an impartial perspective to the jury that places the police’s account in doubt.

BANK STATEMENTS, CREDIT CARD RECORDS, RECEIPTS

Any of these records could be introduced to show that you had little or no alcohol on the night you were driving, or that you were somewhere that does not allow drinking.

EXPERT WITNESSES

If we go to trial on your DUI case, we will likely explore the benefit of retaining an expert witness to expose the DUI cop’s often biased perspective, faulty DUI investigation or combat the one-sided testimony of the breath technician or other State analysts.

OFFICER’S RECORD

A defendant has the fundamental right to challenge the credibility of any witness being used against you. If an officer has a poor disciplinary record, this can be used by your lawyer to attack the officer’s credibility and help beat the DUI case against you.

HEARSAY NOT ALLOWED

Hearsay is one of the most important, and one of the most misunderstood, rules of evidence. Hearsay essentially refers to secondhand evidence—a witness cannot testify as to what someone else said. If the defendant or the prosecutor wants someone else’s statements to be heard by the jury, that person must personally appear in court and testify. (That being said, there are many exceptions to the hearsay rule far too complex to discuss here.)
The purpose for this rule is one of reliability: the jury cannot determine the original person’s credibility, nor can it tell if the testifying witness even heard the original person’s statement right or understood its context.

PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS

An exception to the hearsay rule is prior inconsistent statements. While hearsay is usually inadmissible because of its unreliability, this exception allows for a witness’s prior statements to be introduced if it conflicts with the witness’s trial testimony, based on the theory that the hearsay is not being used to prove the case but to discredit the witness’s credibility. Thus, if a police officer or other witness’s testimony is inconsistent with his or her prior statements—whether made verbally, in a police report, or at previous court proceedings—your lawyer can bring up the statement to show that the witness can’t keep to a single story.

Joel Leppard with Intoxilyzer 8000 at BBT

THE RIGHT TO CONFRONT YOUR ACCUSERS

The Sixth Amendment to the United States Constitution states that a criminal defendant shall be confronted with the witnesses against him or her (known as the Confrontation Clause). Similar to the hearsay rule, this means that a person’s statements generally cannot be used against you unless that person appears at trial and testifies under oath. The Framers found it fundamentally unfair for such statements to be used against a defendant without the chance to cross-examine the witness and challenge his or her credibility in front of the jury.

For one important DUI-related example, the Florida Supreme Court ruled that a breath-test affidavit—the readout printed by an Intoxilyzer indicating the suspect’s BAC level—is inadmissible under the Confrontation Clause unless the breath-technician who prepared the affidavit testifies at trial.

HAVING DEFENDANT TESTIFY

Just like how you have a right to not testify, you also cannot be prevented from testifying if you choose to do so. Although you do not have to put forth any evidence to prove your innocence, sometimes testifying can help your case if the jury finds you credible or to help tell your side of the story.

EXPLAIN A REFUSAL TO SUBMIT TO A BREATH TEST

If the prosecutor is allowed to bring in your refusal, you can still explain that it was for an innocent reason. Perhaps you didn’t trust the breath instrument. Maybe you don’t trust police in general Maybe a lawyer you met at a dinner party told you never to blow even if you haven’t had anything to drink. Maybe you have a medical condition that would falsely elevate your BAC level. Maybe you were mistreated by the police, so you don’t wantThe point is, there are countless legitimate explanations for refusing a breath test.

THE BLACK BOX / EDR

Many newer models of cars come with event data recorders, also known as “black boxes,” which record information about how a vehicle is operated, such as speed and braking. In car-crash DUI cases, it might be helpful to introduce evidence from the black box to show that your car was being operated safely at the time of the crash, thus showing that you were not impaired. Conversely, introducing the other driver’s black box could show that he or she was driving recklessly, proving that you did not cause the crash.

COOKIE-CUTTER REPORTS

All too often, the officers involved in a DUI case will write “cookie-cutter reports,” writing only the basic information and leaving many details out. Unsurprisingly, these reports will do little to help the officers remember what happened several months or even years later on the day of trial. How can you be found guilty beyond a reasonable doubt when the officer doesn’t even remember what happened? Sometimes we have looked up old reports and found that cops are mixing up details between reports and copy and pasting the same report over and over again. (See our case results page to see how this DUI case turned out!)

BLOWING OVER .08 DOES NOT ALWAYS EQUAL IMPAIRMENT

It’s important to remember that your BAC reflects only how much alcohol is in your system, without accounting for tolerance. Someone who is technically over the legal limit may well be fine to drive because of his high tolerance.

A caveat: the prosecutor can prove that you are guilty by showing that you were impaired by alcohol or drugs or by showing that your BAC was above the legal limit—the prosecutor only has to prove one of these. But if we get the BAC test thrown out or convince the jury that the test was unreliable, we can argue that your BAC level does not reflect your impairment.

INVOLUNTARY-INTOXICATION DEFENSE

Florida law recognizes that you should not be found guilty of DUI if you were unintentionally under the influence. In that case, your defense lawyer can raise a defense of “involuntary intoxication.” For example, it is a valid defense that you were intoxicated solely from taking medication as prescribed by a doctor. (The defense would not apply if you failed to take the medicine as prescribed, because at that point you are voluntarily disregarding your doctor’s instructions.) Another example would be if you take what you thought was ibuprofen, but it turns out that your friend switched it out for a controlled substance. See Carter v. State, 710 So. 2d 110 (Fla. 4th DCA 1998).

NECESSITY DEFENSE

Florida law recognizes a necessity defense to DUI. For example, you might claim a necessity defense if you were the only one available to drive someone in critical condition to the hospital. On the other hand, the defense probably would not apply if you felt it was necessary to bring cannabis to your friend.

LEGALLY IMPAIRED

It is only illegal to be impaired by alcohol or certain types of drugs. If you are impaired by a medication that is not the statutory list of drugs–this is actually not illegal!

MEDICAL-IMPAIRMENT DEFENSE

The prosecutor must prove beyond a reasonable doubt that you are impaired by alcohol or drugs, and not a medical condition. A diabetic who is suffering from low blood sugar, for example, can exhibit some of the same physical symptoms as someone who is impaired by alcohol—slurred speech, confusion, clammy skin, etc. Moreover, some medical conditions can compromise a breath test. The byproducts of diabetes appear like ethyl alcohol to Intoxilyzers, which can unfairly impact the breath test. Other conditions like acid reflux or GERD (Gastroesophageal Reflux Disease) cause alcohol to be brought up from your stomach to your mouth, “fooling” the breath test into testing your BAC as higher than it really is.

NO DAMAGE TO PROVE DUI WITH PROPERTY DAMAGE

If you are tried for DUI with Property Damage, the prosecutor must prove beyond a reasonable doubt that you actually damaged property belonging to another person. Thus, Florida courts have held that a defendant must be acquitted if the defendant crashed into a building, a vehicle, or other property, but there is no evidence of what damage the defendant caused. Likewise, one court overturned a conviction for DUI with Property Damage where the defendant damaged a truck, but no evidence established that the truck belonged to anyone but the defendant herself. See Brown v. State, 32 So. 3d 779 (Fla. 2d DCA 2010).

NEW TRIAL / MISTRIAL

If the prosecutor makes a serious enough error that jeopardizes your chance at a fair trial, your defense lawyer can move for a mistrial. If the judge grants the motion, the jury will be dismissed from the case and an entirely new trial with a new jury will be required.

If the jury convicts you of DUI, your lawyer can also file a motion for a new trial, which asks the judge to act as a separate juror and determine whether the evidence was strong enough in the judge’s mind to prove guilt beyond a reasonable doubt. If the judge disagrees that the defendant should be found guilty, the judge will set aside the jury’s verdict and hold a new trial before a different jury.

CONCLUSION

CONCLUSION – Congrats you made it!
This is a very long list of ways to beat your DUI in Florida. While this is a long list, it is by no means exhaustive. One of our favorite parts of our job defending drunk drivers is to come up with new and novel strategies to defend your rights. (We think that’s one of the reasons why we have the highest DUI dismissal rate in Orange County, Florida from 2014-2018.)

Likewise, please do not consider this information as a substitute for legal advice. Every case is different and we look at each case to determine what type of defenses might apply in your DUI case.