Fighting a DUI in Florida

Before a trial is ever held, a DUI can be challenged on constitutional, legal, or administrative grounds. A successful challenge can result in key state's evidence being thrown out by the court, making it impossible for the State to continue prosecution.

The primary ways to attack a DUI are to:

Law enforcement is notorious for stopping a vehicle on a "hunch" that the you have been drinking. Once stopped, their investigative methods are crude and inaccurate; and many officers making DUI arrests have limited training on the effects of alcohol in the body.

In turn, the machines relied upon by LEOs to test your breath, blood, or urine for alcohol are subject to error. Additionally, even though these machines must meet strict governmental regulations to be admissible, but they are often improperly maintained.

So what does all of this mean? Simply put, the State needs all of their evidence to prevent a judge from dismissing the case for lack of evidence or to present a strong case to a jury.

If I challenge one link in the State's case, which results in evidence being thrown out (suppressed), the State may be prohibited from proceeding or forced to negotiate a deal to a lesser charge. In DUI defense, winning one battle can result in winning the war!

Challenge the Stop

The law is very clear that a law enforcement officer may only stop you for one of two reasons:

  1. If the officer has a reasonable suspicion that your are committing a traffic infraction, or
  2. If the officer has probable cause that you are committing a crime.

However, many times it can be shown that the officer was mistaken in his reason for stopping you. If this is proven, all of the evidence in your case will be thrown out and the State will be forced to dismiss your case.


Say an officer stopped you for an expired license plate and subsequently arrested you for DUI.

If I can prove that your license plate was not expired and the officer was mistaken, the Judge will find that the officer made an illegal stop and throw out the evidence against you. This will force the State to dismiss the case.

Challenge the Field Sobriety Tests

In most DUI cases, law enforcement will administer Field Sobriety Tests prior to arresting you. There are several ways to challenge the officer's testimony about your performance on these tests:

Does the officer know what your true balance and coordination is?

Do you have any physical disabilities like a bad back or bad knees? Physical disabilities or injuries may affect your ability to perform the test, thereby making them unreliable and inadmissible.

Is the officer qualified to perform the specific Field Sobriety Test? Some Field Sobriety tests, such as the HGN test (eyes following pen test), may only be performed and testified about by certified alcohol recognition experts. Other tests, such as the reverse alphabet test are not deemed reliable by the courts.

Challenge the Breathalyzer

As previously mentioned, the machines used by law enforcement are tightly regulated and subject to strict maintenance requirements to be admissible. Additionally, the testing must be done in a very specific manner.

The failure to either properly maintain the machines or conduct the tests in accordance with required procedures can result in the results being ruled inadmissible, no matter how high your results were.

Example Issues

The failure of an officer to do any of these simple steps, or possibly other steps not mentioned, may result in the breath test results being thrown out.

  • Did the officer observe you for 20 minutes straight prior to the breath test?
  • Did the officer tell you to "keep blowing" during the breath test?
  • Did the officer calibrate the machine properly prior to testing?
  • Did the officer read Florida's Implied Consent Law or incorrectly state the law?

Suppress Your Statements

One of the most well known Miranda Warnings states: “Anything you say can be used against you in a court of law.” However, contrary to popular belief, an officer does not have to immediately read you your rights when stopping you for a traffic infraction.

Upon initially being stopped, an officer is free to ask you common questions such as where are you coming from, where are you going, have you had anything to drink. Therefore it is important you watch what you say, especially if you have been drinking.

Nevertheless, if you do say something incriminating to law enforcement, I may still be able to suppress your incriminating statements.

Generally, statements are challenged for being obtained in violation of:

An officer only has to read you your rights when you are under arrest, or if you are no longer free to leave. Once an officer reads you your rights you should politely decline to speak with him any further and request an attorney.

A common problem that arises in DUI arrests is when it is clear that you are no longer free to leave, the officer never reads you your rights, and continues to question you about your activities prior to being stopped. This practice is illegal and any incriminating statements gained by an officer during this time can be thrown out by a judge.

Florida's Accident Report Privilege

Many times, if you are in an accident you will later find yourself accused of DUI. In Florida, you are required by law to report the accident to authorities, raising the possibility that you may make incriminating statements to law enforcement regarding the accident.

Fortunately, Florida law excludes most statements you give to law enforcement about an accident from being used in a later civil or criminal trial. This is known as Florida's Accident Report Privilege and the purpose of the privilege is to encourage witnesses to cooperate with law enforcement in automobile accident investigations.

However, the Accident Report Privilege is not absolute and there is one major exception. If a law enforcement officer suspects that you were driving under the influence, or committed another crime related to the crash, he may "switch hats" and inform you that he is no longer conducting a crash or accident investigation; rather he is now beginning a criminal investigation related to the accident.

To continue questioning you, the officer must then read you your rights if he wishes to continue. At this point you should decline to answer anymore questions and request a lawyer.

Many times the officer fails to "switch hats" and read your rights. If an officer fails to properly "switch hats" or read your rights, any statements you make to the officer may be suppressed under Florida's Accident Report Privilege.

Be Careful with Spontaneous Statements

The biggest exception to your right to remain silent and the Accident Report Privilege occurs when you make a spontaneous statements. A spontaneous statement is one that is volunteered without being asked a question. Any spontaneous statements you make before or after being read your rights can be used against you, regardless if other statements are thrown out due to illegal police misconduct or the accident report privilege.

Contact DUI Defense Attorney Richard Hornsby

Contact DUI Defense Attorney Richard Hornsby for the DUI defense representation you deserve. The initial consultation is free and I am always available to advise you on the proper course of action to take.