Best DUI Defenses
The article lists the best DUI defense strategies available under Florida law. Some of these defenses are relatively rare. Other defenses are commonly asserted in DUI cases in Florida.
The defenses available in your case will depend on the unique facts and circumstances of the case.
Many defenses can be decided on a pretrial basis, leading to the exclusion of evidence or an outright dismissal of the charge before trial. Affirmative defenses are decided by the jury at the trial.
What can you do to help your attorney decide which defenses might apply to your case?
After the arrest, write down everything you can remember about what happened before and after the arrest. Sometimes small, seemingly insignificant details can make a big difference in the way the case is resolved.
Attorney on the Best DUI Defenses in Tampa, FL
If you have questions about a particular defense that may apply to your drunk driving case, contact an experienced criminal defense attorney at Sammis Law Firm in Tampa, FL.
Our DUI defense attorneys represent clients charged with a first DUI or a second or subsequent offense. Whether you took the breath test, blood test, urine test, or refused to submit to the test, we can help you fight the charge.
We provide free initial consultations so that you can discuss the particular facts of your case directly with an attorney.
During the consultation, our attorneys can talk with you about the best strategies for fighting the DUI charges and unique defenses that might apply to your case.
Our main office is in downtown Tampa in Hillsborough County, FL.
We fight DUI charges in New Port Richey in Pasco County, FL, from our second office at 7509 Little Road in New Port Richey, FL.
For DUI cases in Pinellas County, visit our office at 14010 Roosevelt Blvd #701, Clearwater, FL 33762.
Call 813-250-0500 today.
- Statutory and Constitutional Challenges
- Types of Defenses
- Insufficient Evidence
- Failure to Preserve Video Tape Evidence
- Disputing an Element of the Prosecutor’s Case
- Officer’s Disciplinary or Internal Affairs File
Statutory and Constitutional Challenges
Illegal Traffic Stops in DUI Cases
The Fourth Amendment requires the execution of any search, seizure, or arrest in a reasonable manner.
Typically, that means that the officer performing the stop must have probable cause that you committed a traffic violation or reasonable suspicion that you committed a criminal offense.
- DUI Roadblock or Checkpoint –
- DUI Checkpoint cases are the most heavily scrutinized under the Fourth Amendment.
- In these cases, the officer has no suspicion of wrongdoing when the officer makes the stop.
- Instead, the officer randomly stopped certain vehicles traveling through the roadblock.
- Always talk with an attorney before entering a plea in a checkpoint case.
- Watch a video on how an illegal DUI checkpoint can cause the prosecutor to drop the charges entirely in a case we handled in Pasco County, FL.
- Weaving Within the Lane –
- Most of the time, a civil traffic infraction is not committed simply by weaving within a lane.
- If the officer stopped the vehicle for this reason alone, the judge might find the stop violated the Fourth Amendment.
- Anonymous Tip by 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 Stop
After a DUI investigation begins in Tampa, FL, the law enforcement officer will search the driver’s body and 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 the smell of marijuana justified the search. The search might be justified as being “incident to arrest.”
Lack of Probable Cause for the DUI Arrest
To formally arrest a driver for DUI, 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 extent his normal faculties were impaired due to alcohol or drugs.
Because of this requirement, a DUI officer will typically recite the textbook “clues of impairment,” which include the odor of an alcoholic beverage, slurred speech, a flushed face, glassy eyes, bloodshot eyes, slurred speech, trouble exiting the vehicle, swaying while standing or lethargic movements.
When enough clues are missing, the arresting officer may not have sufficient evidence to show probable cause for a DUI arrest. As a result, filing a motion to suppress evidence might lead to a dismissal of the case.
Miranda Warnings in DUI Cases
Once the defendant is taken into custody and interrogated, the officer must read the Miranda warnings. The failure to read Miranda might lead to the suppression of any statements made by the defendant.
Officers in the early stages of a roadside DUI investigation may not be required to read Miranda warnings until after the arrest.
If the officer takes the driver to another location to perform the field sobriety exercises, or if the questioning occurs after a crash, the failure to read Miranda typically leads to the suppression of statements made by the driver.
Violations 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 for a felony DUI charge.
Speedy trial violations are most common in cases where the DUI is initially charged as a felony, but the prosecutor takes too long to file charges formally.
In those cases, the 90-day speedy trial period may run out before the first court date if only misdemeanor charges are filed.
Speed trial violations can also occur when the driver goes to the hospital for injuries from a crash, and the officer mistakenly issues a DUI citation or triggers an administrative suspension. In those cases, the prosecutor might not file charges until after the blood test results are returned, which can take several months.
Crash or Accident Report Privilege
Accident or Crash Report Privilege – Florida law requires a driver to provide information after a vehicle crash or accident. That duty to report conflicts with the constitutional right to remain silent. To avoid this 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.
Types of DUI Defenses
Intervening Cause in DUI Case – If the driver’s impairment or intoxication is not the cause of the accident (or did not contribute to the accident), the driver can assert a defense to a charge of DUI with serious bodily injury or death. Find out more about how the intervening cause defense works in a drunk driving case at trial and on a pre-trial basis.
DUI Involuntary Intoxication Defense – What if a drug is slipped into a person’s drink without that person’s knowledge? The “involuntary” intoxication defense might be available. Of course, if the person voluntarily becomes intoxicated or impaired, no defense is available under Florida law in a DUI case.
Voluntary Intoxication or Insanity DUI Defense – The “voluntary intoxication” defense is not available in a DUI case. Read more about the “insanity” defense in DUI cases.
DUI Necessity Defense – Although rarely asserted, the necessity defense could be asserted in a case in which a person drives under the influence to escape some greater harm (being chased by a gunman) or because he or she is directed to do so by law enforcement.
DUI Duress Defense – The duress defense is used when the person accused of DUI drove only after choosing between the lesser of two evils. The duress defense might exist when the law enforcement officer orders a passenger to drive the vehicle to a new location. In that case, the person can choose between refusing the officer’s command and driving under the influence.
DUI Entrapment Defense – The most obvious example of the DUI entrapment defense is when a law enforcement officer uses a pretty girl to buy a man drinks and then convinces him to drive a vehicle when he is not otherwise predisposed to commit the offense of DUI. If the man committed the offense to gain favor with the pretty girl, and the pretty girl was an undercover officer or working at the direction of law enforcement, an entrapment defense can be asserted. The entrapment defense is intended to prevent law enforcement from manufacturing crime during sting operations to arrest people not predisposed to commit the crime.
Insufficient Evidence of Drunk Driving
No Proof DUI Suspect was Seen Driving or in Actual Physical Control (Behind the Wheel)
After an accident, the individual may exit the vehicle before the arresting officer arrives.
In those cases, the office won’t see who was driving. Suppose no other witnesses can testify about who was behind the wheel.
In that case, the prosecutor may be unable to prove one element of the DUI case – the actual physical control of the vehicle.
Inoperable Vehicle – What Happens if the Vehicle Had Mechanical Problems?
What happens if a person is in actual physical control of a motor vehicle, but the vehicle is inoperable?
The standard jury instruction provides 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, they should find the defendant “not guilty” of DUI.
Failure to Preserve Video Evidence
The failure to preserve a videotape that was made may violate the driver’s due process rights. If the officer decided not to video the encounter, it might be argued that the officer acted in bad faith by failing to preserve favorable or exculpatory evidence.
In many cases, the DUI officer in Hillsborough County can preserve the following evidence on videotape:
- 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, the officer will ask you questions and then read the Florida Implied Consent Warnings.
- Your attorney can obtain this evidence in a DUI refusal case to see if the officer read the warning correctly.
- If not, then the trial court may suppress the evidence of the refusal before the trial.
- Driving Pattern –
- Sometimes, the DUI officer has video equipment in his vehicle but fails to tape or preserve this videotape evidence.
- In other cases, when a videotape of the driving pattern is preserved, the videotape 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 before the time you submit to the breath test.
- The officer’s failure to observe the twenty-minute observation period may lead to the court excluding the breath test result.
- If your arrest occurred before November 17, 2009, then videotape evidence from central booking at the jail for the Hillsborough County Sheriff’s Office can be obtained by your lawyer.
- For arrests after November 17, 2009, videotape evidence of the breath test is usually unavailable in Hillsborough County, FL, because the new central breath testing unit was built without cameras.
Disputing an Element of the Prosecutor’s Case
- Failure of the officer to properly administer or grade the exercises or tests
- Failure of the officer to take into consideration the suspect’s medical problems
- Language problems when the suspect does not speak English as his primary language.
- Implied Consent Warning – When you apply for your Florida driver’s license, you are deemed to have consented to a requirement to take an approved chemical test after a lawful request. To be a lawful request, the arresting officer must have probable cause that you are 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 – Sometimes, medical conditions prevent a person from being able to submit a sufficient sample. Those medical conditions might include asthma, chronic obstructive pulmonary disease (COPD), occupational lung diseases, and pulmonary hypertension.
- The sample must be available to the defense for an independent retesting to confirm or disprove the results.
- Forced Blood Draws are often considered “per se” unconstitutional without a warrant or exigent circumstances.
- Any contaminated sample might be excluded from evidence because it isn’t accurate or reliable.
- The blood sample from one suspect can be switched with the sample from another person unless the laboratory technician follows strict procedures when processing the samples.
- The urine test is entirely unreliable when used to estimate blood alcohol content.
- Urine tests to measure prescription drugs are often inadmissible because the concentration of drugs in the system cannot be quantified.
- Urine tests to measure marijuana consumption are also inadmissible at trial because the THC level cannot be accurately determined.
- A false positive in a DUI urine test is common and well-documented in the scientific community.
Breathalyzer Machine – Problems with Florida’s Intoxilyzer 8000 might include any of the following:
- 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
Officer’s Disciplinary or Internal Affairs File
If the law enforcement officer in your case has a history of disciplinary actions, those instances can 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 attorney can obtain a copy of the officer’s disciplinary or internal affairs files.
Different procedures exist for obtaining the internal affair or disciplinary files for officers with different agencies in Hillsborough County, including:
- Hillsborough County Sheriff’s Office;
- Tampa Police Department;
- Plant City Police Department;
- Temple Terrace Police Department; and
- Florida Highway Patrol.
Finding a Lawyer for DUI Defense in Hillsborough County, FL
Getting the best result in a DUI case often requires the following:
- invalidating the administrative suspension at the formal review hearing; and
- avoiding a DUI conviction in court so that the record can be sealed or expunged.
A DUI arrest comes with long-lasting consequences.
Contact us today to find out what you must do immediately to protect your driving privileges, avoid a criminal record, and defend your good name. During the consultation, we can discuss the best defenses that might apply to your case.
Whether your case involves a breath, urine, or blood test, or refusal to submit to chemical testing, our attorneys can help you fight the charges.
We fight the charges aggressively at every stage of the case, from the formal review hearing, the arraignment, the pre-trial dispositions, the pre-trial conferences, the motion hearing, and the trial.
Our focus on drunk driving defense allows us to stay current on the most recent changes in the law that impact these types of cases.
We believe in filing every viable motion, including Motions in Limine, Motions to Dismiss, Motions to Exclude Evidence, and Motions to Suppress Evidence Illegally Obtained.
Let us put our experience to work for you. Call 813-250-0500 today to speak with an attorney about the facts of your case.
Submit this form to request a free and confidential consultation with one of our attorneys.