There are two basic elements to the crime of DUI.  The State is required to prove each of these beyond and to the exclusion of a reasonable doubt:

  • The Defendant drove or was in actual physical control of a vehicle; and
  • While driving or in actual physical control of that vehicle was:
    • Either under the influence of alcohol to the extent that their normal faculties were impaired,
    • Or had a breath reading of .08 or higher.  

This is the language that is given as the instruction to a Jury by the Judge before they begin to deliberate.

Attacking the legality of the stop. The officer or deputy that pulled you over must have a legal justification to have initiated the traffic stop.  That simple means before they turned on their overhead lights to pull you over they have to have a legal reason to do so.  This can be the best area to attack a DUI case because if a Judge finds that the stop was not legal then ALL evidence is thrown out.  Below are some examples of successful attacks on dui where the Judge found the officer had no legal reason to stop someone.

Infraction. Many times an officer, especially new officers, will pull someone over for what they believed to be a traffic infraction which in fact was not.  For instance, one Police Department here in Palm Beach County continues to pull over drivers who fail to use a turn signal while changing lanes even if no traffic is affected.  However, The Fourth District Court of Appeals held “the mere failure to use a turn signal, without the driver’s conduct creating a reasonable safety concern, does not constituted a violation…”  State v. Frierson, 851 So.2d 293 (4th DCA 2003).  These types of stops are not legal and the Judge will thrown out all the evidence.

No Probable Cause or Reasonable Suspicion of Impairment. Even if an officer does not observe a specific traffic infraction they may justify pulling over a driver over for behavior they thought showed impairment.  Usually these involve a driver weaving within his own lane.  Judges are very suspicious of this type of stop and usually throw out cases where the officer had a “hunch” that the driver was impaired. 

Jurisdiction.  An officer must be in his jurisdiction when he observes the driver for the stop to be legal.  The officer can follow a driver outside his jurisdiction.  But, only so long as his legal reason to stop that driver began in his jurisdiction.  There are areas of the county where officers are uncertain as to the jurisdictional lines.

Duration of Detention. Many agencies have officers who are the DUI “specialist” and while you may have been pulled over by one officer they may call that “specialist” in to do the DUI investigation.  If the period of time from when the first officer pulled you over to when the DUI “specialist” arrives is too long a Judge may find the period of detention as unreasonable and throw out the evidence.

Roadblocks. Every few years these become popular and offer great opportunity for the defense to get cases thrown out.  The reason is that each roadblock must meet very strict criteria set by a long string of court cases.  If any part of that criteria is not meet then the Judge will throw out the evidence.

Accidents. Florida law has what is called an “Accident Report Privilege.”  Florida Statutes §316.062 and 316.066.  Basically what this means is a driver involved in an accident is required to speak with an officer what happened.  However, anything that driver says during this cannot be used against them later.  What happens many times is that an officer investigates an accident and uses information that is protected by this privilege in his DUI arrest.  This may result in the Judge throwing out the case.

Breath Test. If your case involves a breath result that was above a .08 there are a multitude of defenses.  Some may result in the breath reading being thrown out by the Judge.  Others help to explain to a Jury why the result is not accurate. Maintenance logs and certifications must be provided to show that the machine was correctly certified and operating according to FDLE requirements.  If it was not then the breath result will be thrown out by the Judge.

The officer must have done what is called a “twenty minute observation” before the breath test.  If he failed to do this the results will be thrown out by the Judge. Inaccurate instructions regarding the ramifications of giving a breath sample can result in the judge throwing out the result.  Should the officer give the impression that either refusing or taking the test will create what is called a “safe harbour” then the Judge will thrown out the result.

The Deputy who is in charge of the maintenance for all the breath machines will admit that the machine has a variability of .02.  This means that the machine has a degree of error that can place someone from one minute to another over and under the legal limit.

Henry’s law is a scientific principle that relates breath alcohol to blood alcohol.  The machine takes what is called a particulate ratio of 2100 to 1 as the average for everyone in determining a breath result.  However, the Deputy will testify that individuals’ particulate ration varies. And the machine uses 2100 as an average just like using 5 foot 9 inches as the average hight of all people living in Palm Beach County. A person with a particulate ration difference than this average can result in what is called a “False High” reading.

Administrative Suspension from the Department of Motor Vehicles.  Upon your arrest for DUI your Ticket serves as a temporary driving permit for only 10 days.  This is the window to challenge the administrative suspension of your license.  On July 1st of 1013, Florida Statute Section 322.271 was amended.  This change has an important effect on when you should or should not request a Formal Review.  Our office will tell you what is the best decision for your needs.  If this is a first DUI, waiving this hearing may be the most appropriate action as it will allow you to get a hardship license immediately. 

If you have priors or, in certain circumstances, even on a first demanding a formal review is the correct decision.  Thus our office will file all the paperwork, issues subpoenas, set the hearing and, if you are eligible, gets you a hardship permit for usually an additional 30 days or until the hearing is held.  At the hearing we have an opportunity to question the officers who pulled you over and make motions to invalidate the administrative suspension of your license.  If we are successful then you get your license back.  If however, the Department upholds the suspension then one of two things will occur.  If the case involves a refusal, that is you didn’t submit a breath sample, then 90 days of “hard time” is imposed.  That means you are ineligible for any hardship permit for that period of time.  If the case is a breath result over .08 that the “hard time” is only 30 days.  At the end of that time you only need to have enrolled in DUI school in order to get a permit.  Out office tracks these times and guides our clients so that they can have a license the very day they are eligible.  These periods differ if this is not a first arrest.

Criminal suspension.  A first conviction usually results in a suspension of 6 months.  A second conviction usually results in a suspension of 5 years.  A third conviction usually results in a suspension for 10 years.  A fourth conviction usually results in a permanent suspension.

If you choose to require the State of Florida to prove the case against you in front of a jury, you need the ability of our firm by your side. We will present your case along with the best evidence, and fit it within the rules of evidence to most effectively present your message to the jury. Contact us to start your defense. »