DUI Defenses

Some of the defenses that can be raised in a motion to suppress or dismiss are:

1. Illegal Traffic Stop
2. Improper Field Sobriety Tests
3. Insufficient Probable Cause
4. Inadmissible Breath Test Results

Improper Traffic Stop

Fourth Amendment of the United States Constitution and the exclusionary rule protect citizens from unreasonable searches and seizures, particularly during an illegal traffic stop. A Law Enforcement Officer must have a probable cause to conduct a traffic stop based a traffic infraction or a reasonable suspicion that a person committed, is committing, or is about to commit a crime.

Police officers look for signs of impaired driving and any traffic infractions, such as:

1. Weaving or drifting on the road;
2. Failure to maintain a single lane;
3. Reckless driving;
4. No headlights;
5. Speeding;
6. Broken tail lights or tag lights;
7. Wide turns;
8. Striking curbs or medians.

There are many more reasons a police officer can pull you over. An experienced criminal defense attorney has the ability to review the video evidence and other discovery to make a determination of whether there was a probable cause for a traffic infraction, and subsequently, prepare a motion to suppress any evidence seized or a motion to dismiss the cased based on an unlawful traffic stop.

Improper Field Sobriety Tests

Field Sobriety Tests (FSTs) are tests designed to determine the physical and cognitive performance of an impaired person in order to establish a probable cause for DUI arrest. The tests are Horizontal Gaze Nystagmus (HGN), Walk-and-Turn (WAT), and One-Leg-Stand (OLS). In addition, other tests may be used such as Finger-to-Nose, Romberg Alphabet, and Counting test.

To establish a probable cause for a DUI, police officers primarily look for impaired faculties such as red bloodshot eyes, slurred speech, loss of balance, odor of alcohol, red flushed face, and etc. A person can have physical limitations or other illnesses that can prevent him or her from completing them properly. In some cases, FSTs may be coerced, and a person feels like he or she has to acquiesce to the authority. There is no legal obligation to perform FSTs; however upon refusal, there is a likelihood of an arrest for a DUI.

Insufficient Probable Cause

“Probable cause to arrest exists when the totality of the facts and circumstances within the officer’s knowledge would lead a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it.” State v. Walker, 991 So.2d 928, 931 (Fla. Dist. Ct. App. 2008). If a police officer conducts an illegal stop without a probable cause for a traffic infraction or cannot observe any impaired faculties, then a police officer failed to establish a legitimate reason for DUI investigation or even an arrest. Without a probable cause, a police officer cannot initiate a DUI investigation if any of the evidence is tainted as a result of unlawful police acts.  Illegal traffic stop, insufficient FSTs, insufficient Breath Alcohol test results, and a lack of impaired faculties can result in a lack of a probable cause for an arrest for a DUI. The evidence in a DUI case must establish all of the elements beyond a reasonable doubt (See First Offense DUI page).

Inadmissible Breath Test Results

Florida Implied Consent law contains the guidelines for the Law Enforcement Officers to request and administer breath, urine, or blood tests to obtain alcohol or controlled substance level of a person suspected of impaired driving. Florida State Statutes 316.1932 states that any person who accepts the privilege of driving within the state of Florida is deemed, by operating a vehicle, to have given his or her consent to submit to lawful requests for breath or urine testing for the purposes of determining the alcohol content of his or her breath, or for detecting the presence of chemicals or controlled substances if lawfully arrested for a DUI.

First refusal to testing has a penalty of one year suspension of a driver’s license. Second refusal is a first degree misdemeanor and has an 18-month suspension of a driver’s license. Breath tests are conducted using an Intoxilyzer 8000 to collect two samples. Breath tests can be conducted in conjunction with a urine tests if there is a reasonable cause to believe that a person is under the influence of chemicals or controlled substances or if a breath tests is impractical or impossible.

Blood tests are conducted either upon voluntary consent or if there is a reasonable cause to believe that a person was driving a vehicle or was in actual physical control of a vehicle and a person appeared for treatment at medical facility, pursuant to Florida State Statutes 316.1932(1)(c). In addition, if there is a serious bodily injury involved, a Law Enforcement Officers can request a blood test.

Some of the defenses can be as follows:

1. Improper statement of implied consent law
2. No actual refusal
3. Lack of implied consent warning
4. Breath or urine not impractical or impossible
5. Invalid consent
6. Improper threat or promises
7. Inaccurate statements of law