Tampa DUI Defense

The particular defenses that may be applicable to any criminal case depends on the particular facts of the case. Sometimes small, seemingly insignificant facts can make a huge difference in the way a drunk driving case is resolved. Some defenses can lead to the exclusion of evidence, while others may lead to an outright dismissal of the DUI charges before trial. Some defenses are called affirmative defenses which can only be decided by the jury at trial.

The defenses discussed below are not a complete list. Some of these defenses are rarely applicable in a DUI case. Other defenses are commonly asserted in many DUI cases in Tampa, FL. This list is provided to give you a general idea about the possible avenues of attack your Tampa DUI lawyer can pursue to fight the criminal charges against you.

If you have questions about a particular defense that may be applicable to your drunk driving case, contact an experienced Tampa DUI attorney at the Sammis Law Firm in Tampa, FL. We provide free initial consultations so that you can discuss the particular facts of your case directly with an attorney.

Statutory and Constitutional Challenges

Illegal Traffic Stop

The Fourth Amendment typically requires that any search, seizure or arrest is reasonable. Typically, that means that the officer that performs the stop have either probable cause that you committed a traffic offense or reasonable suspicion that you committed a criminal offense.

• DUI Roadblock or Checkpoint - Roadblock cases are the most scrutinized under the Fourth Amendment.
• Weaving Within the Lane - No civil traffic infraction is committed simply by weaving within a lane.
• Anonymous Tip for Another Driver or Concerned Citizen - An anonymous tip is rarely sufficient to justify a stop if the officer conducting the stop does not make any observations of impaired driving.

Illegal Search

After a DUI investigation begins in Tampa, FL, the law enforcement officer may perform a search of the driver's person, or vehicle. If the officer seizes any physical evidence such as an open container of alcohol, receipts of recent alcohol purchases, drugs, or drug paraphernalia, the physical evidence could be suppressed or thrown out by the trial court if the circumstances of the search are unreasonable. Officers often rely on consent for the search or allege that a smell of marijuana justified the search. Officers may attempt to justify the search as being "incident to arrest."

Illegal Arrest

In order to formally arrest a driver for DUI in Tampa, Hillsborough County, the arresting officer must have probable cause to believe that the individual was driving or in actual physical control of the vehicle while under the influence of alcohol to the extend his normal faculties were impaired due to alcohol or drugs. Because of this requirement, a DUI officer will typically allege the textbook observations such as an odor of alcohol, flushed face, glassy or bloodshot eyes, slurred speech, trouble exiting the vehicle or swaying while standing. Any one of these factors may not be sufficient to show probable cause for a DUI arrest.

Miranda Warnings in DUI Cases -

Once you are taken into custody and interrogated the officer must advise you of your Miranda warnings or any statements made during the interrogation can be suppressed. Officers in roadside DUI investigations may not be required to read Miranda warnings until a formal arrest is made. However, if the officer takes the driver to another location to perform the field sobriety exercises, or if the questioning occurs after an accident, the failure to read Miranda may lead to the suppression of statements made by the driver.

Lack of Probable Cause for Arrest

In order for the arrest to be valid, it must be based on more than just a belief that the driver consumed some amount of alcohol, it must be based on facts showing a probability that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system or is impaired by drugs.

The odor of alcohol is the most common sign of impairment mentioned by the arresting officer as well as blood shot eyes, slurred speech, flushed face, admissions by the driver, lack of balance, and swaying. If the observations of the officer are not sufficient to support the arrest, then all evidence gathered as a result of the arrest (including the breath test result or evidence that the driver refused testing) must be suppressed.

Violation of Speedy Trial

Florida's Speedy Trial Provisions provide for a trial within 90 days after an arrest for a misdemeanor DUI charge or 175 days after an arrest in a felony DUI charge. Speedy trial violations are most common in cases in which the DUI is originally charged as a felony but a prosecutor at the Hillsborough County State Attorney's Office in Tampa, FL, takes too long to formally file charges. In those cases in which only misdemeanor charges are ultimately filed the 90 day speedy trial period may run out before the first court date. Read more about the effect of the speedy trial violations in Tampa and Plant City cases in Hillsborough County, FL.

Crash or Accident Report Privilege

Florida law requires a driver to provide information after a vehicle crash or accident. That duty to report is in conflict with the constitutional right to remain silent. In order to avoid the conflict, any statements made after a crash or accident are privileged until the officer informs the driver that the crash investigation is over and a criminal investigation is beginning.

General and Affirmative Defenses

Intervening Cause in DUI Case

DUI Involuntary Intoxication Defense

Voluntary Intoxication or Insanity DUI Defense

DUI Necessity Defense

DUI Duress Defense

DUI Entrapment Defense

Double Jeopardy Clause

Statute of Limitations

Insufficient Evidence

No Proof DUI Suspect was Seen Driving or in Actual Physical Control (Behind the Wheel)

After an accident occurs, the individual may exit the vehicle before the arresting officer arrives on the scene. If the officer did not see who was driving, and no other civilian witnesses actually saw the individual behind the wheel, then the prosecutor may not be able on element of the DUI case - driving or actual physical control of the vehicle.

Inoperable Vehicle - How could it be DUI if I couldn't drive the vehicle because of a mechanical problem?

In certain DUI cases in Tampa, Hillsborough County, the defendant is alleged to be in actual physical control of a motor vehicle, however, at the time of the person is in actual physical control of the vehicle, the vehicle is inoperable. The standard jury instruction provides however, that it is not a defense to DUI under Florida law if the defendant was driving under the influence of drugs or alcohol before the vehicle became inoperable. Under this defense, the jury in Florida is instructed that if they are not convinced that the vehicle was operable at the time of the alleged offense, then the jury should find the defendant "not guilt" of DUI. Read the jury instruction for the "inoperable vehicle" in its entirety.

Disputing an Element of the Prosecutor's DUI Case in Florida

Field Sobriety Exercises (Roadside Agility Tests)

• Failure of the officer to properly administer or grade the exercises or tests
• Failure of the officer to take into consideration the suspects medical problems
• Language problems when the suspect does not speak English as his primary language.

Refusal to Submit to Chemical Testing

• Implied Consent Warning - When you apply for your Florida driver's license you are deemed to have consented to a requirement that you will take an approved chemical test after you are suspected of driving under the influence of alcohol or a controlled substance in Florida. After your arrest, if you refuse to take the chemical test, the officer must read your Florida "implied consent warnings." Failure to read the warnings in their entirety may result in evidence of the refusal being suppressed at trial.
• The Alleged Refusal was Not Willful

Factual Issues Effecting the DUI Testing

• Medical problems
• Age
• High Healed Shoes
• Flip Flops
• Hearing Problems

DUI Blood Test

• Retesting - Sample must be available to the defense for an independent test.
• Forced Blood Draws
• Blood Draws While Unconscious
• Contaminated Sample
• Switched Sample

Urine Test

• Urine test unreliable to estimate blood alcohol content;
• Urine tests to measure prescription drugs;
• Urine tests to measure marijuana consumption; and
• False Positive in DUI Urine test.

Tampa Breathalyzer Machine - The Intoxilyzer 8000

• Failure to Observe the Twenty Minute Observation Period
• Presumption of DUI Impairment under Florida Law
• Improper Certification of the Breath Test Technician
• Improper Calibration or Maintenance of the Machine
• Margin of Error
• Rising Breath Alcohol Level - Retrograde extrapolation
• Gender Bias Inherent in the Machine Affecting Women
• Medical Conditions or Issues Causing a Falsely High Reading
  • Regurgitation or Belching
  • Gingivitis, Bleeding Gum Disease, and Periodontal Disease
  • Dentures
  • Asthma
  • Smoking
  • Certain Diets
  • Gastroesophageal reflux disease (GERD) - medical condition in which food or liquids go backwards from the stomach to the esophagus (regurgitation and belching) causing a false high DUI breath test reading on Intoxilyzer 8000.

Failure to Preserve Video Tape Evidence

The failure to preserve a video tape that was made may violate the driver's due process rights. If the officer elected not to use the video tape machine is may be argued that the failure occurred because the officer acted in bad faith knowing that the video tape would preserve favorable or exculpatory evidence. In many cases the DUI officer in Hillsborough County can preserve the following evidence on video tape:

• Driving Pattern - In certain cases, the DUI officer has video equipment in his vehicle but fails to tape or preserve this video tape evidence. In other cases, when a video tape of the driving pattern is preserved, the video tape evidence may contradict the officer's observations.
• Field Sobriety Exercises - In most DUI cases in Tampa, Hillsborough County, the arresting officer will tape the driver's performance on the field sobriety exercises. Often this evidence can be used by the defense at trial to call into question the officer's failure to follow his training in administering the FSE.
• DUI Booking Room Videos - The arresting officer is required to observe you for Twenty (20) minutes prior to the time you submit to the breath test. The officer's failure to observe the twenty minute observation period may lead to the exclusion of the breath test result at trial. If your arrest occurred prior to November 17, 2009, then video tape evidence from central booking at the jail for the Hillsborough County Sheriff's Office can be obtained by your Tampa DUI Lawyer. For arrests that occurred after November 17, 2009, video tape evidence of the breath test is usually not available.
• Implied Consent Warning - For a DUI arrest in Hillsborough County, you will be transported to the Central Breath Testing facility on Orient Road where the arresting officer will ask you to submit to a chemical test of your breath, blood or urine. If you refuse, then the officer will take you into a small room where the officer will ask you a series of questions and then read to you the Florida Implied Consent Warnings. Your Tampa DUI Attorney can obtain this evidence in a DUI refusal case to see if the officer read the warning properly. If not, then the evidence of the refusal may be suppressed by the trial court prior to trial.

Officer's Disciplinary or Internal Affairs File

If a police officer in your case has a history of disciplinary actions, those instances can be used to impeach the officer's credibility on the stand. Additionally, the prosecutor may be less willing to take a case to trial with a troubled or untrustworthy officer. Your Tampa DUI Attorney can obtain a copy of the officer's disciplinary file or internal affairs file.

Expert Witnesses

With the help of your Tampa DUI Attorney, you can retain an DUI expert witness to testify at your motion hearing or DUI trial concerning the field sobriety exercises, or the testing of your breath, blood or urine.

DUI Defenses for Women

Special defenses for women are available when contesting an unexpectedly high breath test result, or to explain reasons for the DUI refusal.

Contact a DUI Lawyer at the Sammis Law Firm in Tampa, Hillsborough County, FL, to discuss your case today. Call 813-250-0500 today.