Florida DUI Defense

What You Need to Know About Driving Under the Influence of Alcohol or Narcotics

DUIs come in all shapes and sizes.

Bleary grandmothers who were overprescribed medication by their doctors and stopped for erratic driving; lawn service guys stopped for an illegal lane change and excessive speed—and who later tested positive for metabolized marijuana; people who provided a breath sample and blew twice the legal limit but looked completely sober in the police video; and people who were drunk, looked drunk, sounded drunk, and drove drunk.

Needless to say, every factual scenario is different.

The bottom line is, what is the evidence against the defendant?

The Breath Test

Breath testing equipment is used to assess how much alcohol a person has in his or her blood stream. The equipment is based on the premise that blood mixes with air in the lungs and that the “deep lung air,”—the air exhaled in the latter portion of an exhaled breath—will have a measurable amount of alcohol that predictably indicates the ratio of alcohol in the blood.

Typically, several samples of breath are tested, along with a control sample. Each sample is expelled from the machine immediately, so samples may never be retested for accuracy. Alcohol may also be measured from a blood draw, and the sample may be retested later. An attorney may request records regarding when the machines were calibrated and tested.

Police are supposed to observe a subject for 20 minutes prior to doing the breath test. This is because alcohol in the mouth—from a recent sip of a beverage, a burp, vomiting, or something else may make the test inaccurate. Ideally, the test measures the alcohol in the air from the deeper portion of the lung, not the alcohol content in someone’s mouth. For this reason, police sometimes encourage people to “keep blowing”—which can result in an abnormally high reading, because the sample may capture an abnormally large amount of deep lung air.

There may be penalties for refusing to provide a breath sample. For a first offense, refusal results in an automatic license suspension for one year. Subsequent refusals result in an 18 month license suspension, in addition to possible time in jail.

Field Sobriety Tests

There is much more to field sobriety tests than meets the eye. Most people think that the tests are about being able to balance, walk along a straight line, or touch one’s nose.

However, the police also take notes on how well people follow directions. They always make sure to ask you if you understood the directions prior to the start of the tests. The fact that a person agreed that they understood the directions can be used against them in court. Police also ask if people are healthy or have health problems prior to giving the exam.

Needless to say, a person with a medical condition that affects their ability to follow directions will have a better argument at trial, compared to a person without such issues. Unlike the breath sample test, people may refuse to take the field sobriety tests, but refusing to do so can be held against them in court.

One common mistake occurs when people are told to walk nine steps up and back. If they walk more or less steps, it’s a sign that they are drunk, even if they look completely sober. They are instructed to turn at the end of the line in a certain way, by taking small steps. If they don’t turn in the manner described by the officer, then they have again failed to follow directions—another sign of impairment.

Unless the tests are videotaped by the officer, then the police officer’s notes will be the only record of the encounter. Police officers make notes on the appearance and behavior of a person, anything they say, how they smell, and how many times they make any type of mistake.

One of the most mysterious tests is the horizontal gaze nystagmus. Essentially, the officer uses a glowing wand to measure a person’s neurological function by measuring the ability of the subject’s eye to track the glowing end of the wand as it is waved in front of their face.

There are six possible clues of impairment and typically no recording is made of the test. The officer’s notes are the only record of the neurological response as measured by the law enforcement officer. Only specially trained officers are permitted to testify in court about the results of such a test. Part of the training they received is how to testify persuasively. Sometimes they even bring an inflatable eyeball into the courtroom to further illustrate their explanation of the test.

DUI Penalties

DUI penalties get worse with every additional conviction for the crime. Furthermore, the Florida legislature as set minimum punishments for DUI convictions. That means if a person enters a plea to a DUI, there is a minimum punishment already set by law. Basically, a person may plea to the charge and hope to face only the minimum punishment, go to trial and fight the charge, or in good cases, plea to a lesser charge such as reckless driving. Of course, there is always the chance that the police made a mistake and evidence may be suppressed.


  • First Conviction: A fine of not less than $250 or more than $500 AND imprisonment of not more than six months/probation of 12 months.
  • Second Conviction: A fine of not less than $500 or more than $1,000 AND imprisonment of not more than nine months/lengthy probation.
  • Third Conviction: Remember—a third DUI conviction is a felony. A fine of not less than $1,000 or more than $2,500 AND imprisonment of not more than 12 months/lengthy probation.

NOTE: Any person who is convicted of a third or subsequent violation of this section is guilty of a Felony of the Third Degree; the fine imposed for such third or subsequent violation may not be less than $1,000. Third degree felonies are punishable by up to five years in prison.

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