The Best DUI Defenses
The best DUI defense is the one that works in a particular case, but we created this detailed list of defense strategies available under Florida law. Whether one of these defenses is available depends entirely on the unique facts of the case.
After the arrest, you should write down everything you can remember. Sometimes small, seemingly insignificant details can make a big difference in the way the case is resolved.
Read our Recent DUI Case Results to learn more about how our attorneys have many of these defenses in our cases.
The list is intended to give you examples of possible avenues of attacking the DUI charges. Some defenses can lead to the exclusion of evidence, while others might lead to an outright dismissal of the charge 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, Hillsborough County, FL.
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 the Sammis Law Firm in Tampa, FL.
We 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. Our attorneys also fight DUI charges in New Port Richey in Pasco County, FL. Our second offices is located at 7509 Little Road across from the courthouse at the West Pasco Judicial Center.
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
Illegal Traffic Stops in DUI Cases
The Fourth Amendment requires that any search, seizure or arrest is reasonable. Typically, that means that the officer that performs the stop must have probable cause that you committed a traffic offense 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 as they travel 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 charges being completely dismissed in a case we handled recently 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, then 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 may perform a search of the driver's body 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 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 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.
If even one of these factors is missing, there may not be sufficient evidence 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 in any DUI case 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
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 bloodshot 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 to test) must be suppressed.
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 in which the DUI is originally charged as a felony, but the prosecutor takes too long to formally file charges.
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 suffered in a crash, and the officer mistakenly issues a DUI citation or triggers an administrative suspension, but the prosecutor doesn't file charges until after the blood test results are returned, which can take several months.
Crash or Accident Report Privilege
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 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.
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) then 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 intoxication 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 a passenger in the vehicle is ordered by the law enforcement officer to drive the vehicle to a new location. In that case, the person has a choice between refusing the officers command and driving while 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 was not otherwise predisposed to commit the offense of DUI. If the man committed the offense in an attempt to gain favor with the pretty girl, and the pretty girl was an undercover officer or working for law enforcement or at their direction, then the man could assert the entrapment defense. The entrapment defense is intended to prevent law enforcement from manufacturing crime during sting operations against people not predisposed to commit the crime.
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 saw the individual behind the wheel, then the prosecutor may not be able to prove one element of the DUI case - the 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 guilty" of DUI. Read the jury instruction for the "inoperable vehicle" in its entirety.
The failure to preserve a videotape that was made may violate the driver's due process rights. If the officer elected not to use the videotape machine is may be argued that the failure occurred because the officer acted in bad faith knowing that the videotape would 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, 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 before trial.
- Driving Pattern - In certain cases, 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 exclusion of the breath test result at trial. 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 Tampa DUI Lawyer. For arrests that occurred after November 17, 2009, videotape evidence of the breath test is usually not available.
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 suspects 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 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
- Retesting - Sample must be available to the defense for an independent retesting to confirm or disprove the results;
- Forced Blood Draws are "per se" unconstitutional without a warrant or exigent circumstances;
- Blood Draws While Unconscious are "per se" unconstitutional without a warrant or exigent circumstances;
- Contaminated Sample are often excluded because they are not 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 completely unreliable when used to estimate blood alcohol content;
- Urine tests to measure prescription drugs are often inadmissible because the amount 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; and
- A false positive in DUI urine test us common and well-documented in the scientific community.
Tampa Breathalyzer Machine - Problems with Florida's 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
If the law enforcement 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 attorney can obtain a copy of the officer's disciplinary file or internal affairs file.
Different procedures exist for obtaining the internal affair or disciplinary files for officers with different agencies in Hillsborough County including the Hillsborough County Sheriff's Office, the Tampa Police Department, the Plant City Police Department, the Temple Terrace Police Department, and the Florida Highway Patrol.
Finding a Lawyer for DUI Defense in Hillsborough County, FL
Getting the best result in a DUI case often requires:
- 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 need to 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 test, urine test or blood test, or a 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 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 today about the facts of your case.
This article was last updated on Friday, July 12, 2019.