DUI Cases

At My DUI Guy, we understand the affects a DUI can have on your freedom, finances, and family. That’s why we conduct a detailed, and thorough review of your case in order to challenge it from every possible angle. This allows us to mount and aggressively advance a defense that is specifically tailored to your case in an effort to get the best possible results. At My DUI Guy, P.A., the fight to aggressively defend your Constitutional Rights and protect your interest takes place on two major fronts. The first takes place before your trial, and the second takes place during your trial if one is necessary.

Before Trial:

Before a trial is ever held, a DUI can be challenged on multiple grounds, including constitutional, legal, or administrative. The goal of each challenge before trial is to get the State’s key evidence thrown out, making it difficult or impossible for the State to continue with your case. This is vital because challenges may lead to a reduction in charges, or at times, even an outright dismissal of your case. In short, the more battles we win, the greater change you have of winning the war! So how do we do this?

Suppression Of Evidence

The most common strategy in a DUI case before trial is to file a Motion to Suppress. In a motion to suppress you are asking the Court to exclude some type of incriminating evidence from your case. Usually if the evidence is not allowed to be used against you then your case can’t proceed. In order to bring a motion, we must first have “grounds.” Grounds are legal reasons for the Court to grant your motion. The most common grounds for a motion to suppress include but are not limited to:

1. Challenge the Stop
2. Challenge the Indicators of Possible Impairment
3. Challenge the Field Sobriety Exercises
4. Challenge the Search after a Stop
5. Challenge the Arrest
6. Challenge the Refusal
7. Challenge the Breathalyzer Test
8. Challenge the Collection of Evidence
9. Suppress your Statements

When we list one or more of these grounds in your Motion to Suppress, we are basically telling the Court that either:

1. The officer made a mistake during one of these phases of your DUI investigation so therefore the evidence cannot be used against you; or
2. The evidence for some reason or another is not reliable and therefore cannot be used against you. Even if we are not successful with our Motion to Suppress, we can still present the defenses in trial in an attempt to raise reasonable doubt for the jury.

1. Challenge The Stop

Under Florida Law, you cannot be stopped while driving, or seized where you are not free to leave, unless an officer has a reasonable and articulable basis to believe that a traffic law or other law has been violated. In all criminal cases, the State has the burden to prove that all evidence was obtained lawfully and in compliance with the Fourth Amendment of the United States Constitution. The Fourth Amendment protects all individuals from unreasonable searches and seizures. In short, this means a police officer cannot stop a motorist based on a “hunch” or a guess. Similarly, it is not a crime to drive a vehicle late at night or for simply leaving a bar. An officer has to demonstrate an objective reason why they made a traffic stop to justify any subsequent seizure or evidence obtained. If we are successful in challenging the stop, then everything that happened after the encounter is thrown out and may result in the dismissal of your case. There are many reasons the stop can be challenged. Some of the most common are:

You did not commit a traffic violation:

• Illegal Turns: For example, you made a right turn on red. But it is shown that you did so properly. So there was no reason for the officer to stop you.
• Weaving Within the Lane: For example, you were weaving within your lane. Most of the time a civil traffic infraction is not committed by simply weaving within a lane. If the officer stopped the vehicle for this reason alone, then the judge might find this was an illegal stop.

Your equipment was not really defective:

• You were cited for having a tag light out, but it turns out you had two and one was operating so there was no need to investigate you.

DUI Roadblock Of 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.

Anonymous Tip by Another Driver or Concerned Citizen:

• An anonymous tip alone is rarely sufficient to justify a stop. The officer has to personally observe the alleged driving pattern. If the officer conducting the stop does not make any personal observations of impaired driving then the stop may be illegal.

The Officer gave “Bad Legal Advice”:

• The officer told you something that was not a correct statement of the law. As a result, you did something incriminating. Because the officer misadvised you the information obtained may be thrown out.

2. Challenge The Indicators Of Possible Impairment

If we can’t challenge the stop, then we try challenging the Indicators of Possible Impairment. Before Law Enforcement can ask you to complete Field Sobriety Exercises, they must first have a reasonable suspicion you may be impaired. Their reasonable suspicion must be based on certain indicators of possible impairment. These indicators include but are not limited to a driving pattern, smell of alcohol coming from your breath, bloodshot eyes, watery eyes, slurred speech, thick tongue speech, flush face, poor dexterity, etc. While almost every arrest report contains these possible indicators of impairment, there have been several instances where they cannot be seen or confirmed on the Bodycam Video, which could create reasonable doubt.

3. Challenge The Field Sobriety Exercises

If we cannot challenge the stop, then we try challenging the Field Sobriety Exercises (FSE’s). In most DUI cases, Law Enforcement will administer them prior to your arrest. FSE’s are the physical tasks designed by law enforcement as a way to measure a person’s sobriety. The most common FSTs are:

• HGN: This is where they move the light back and forth in front of your eyes while your head is not moving.
• Walk and Turn: This is where you take 9-heal to toe steps with your hands by your side, turn around, and walk back.
• Modified Romberg: This is where you close your eyes with your head tilted back and your arms by your side and guess when 30-seconds have passed.
• One Leg Stand: This is where you lift one leg off the ground 6-inches with your foot pointed upward and count to 30 while your arms are by your side.
• Finger to Nose: This is where you tilt your head back with your eyes closed and your arms by your side with your finger pointed and then you touch your nose with the left or right hand as directed by the Law Enforcement Officer.

How does an Officer use the FSE’s to determine if you are impaired?

Officers look for certain “clues’ or “indicators” in each exercise to try to make a determination as to possible impairment. If a person exhibits enough “clues” they are determined to be impaired and arrested for DUI. Clues can be something as simple as using your arms to balance while standing on the line or not touching your toe to your heel while you walk. These clues are very subjective and a good attorney can attack there reliability. Failure by law enforcement to adhere to the predetermined procedures can quickly result in a suppression of any evidence gathered during the test, especially if officers engaged in disrespectful, overly intimidating, or inappropriate conduct toward the test subject. Further, FSE’s observations are considered just one component of the state’s evidence and are not by themselves proof of intoxication. For example, the significance of a heel-toe test may be diminished if the suspect was required to take the test while wearing unreasonable footwear, or if the FSE was conducted in inclement weather, on an uneven surface, or without proper lighting. There are several ways to challenge the Officer’s testimony about your performance on these exercises:

• Does the officer know what your true balance and coordination are?
• 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 Exercise?
• Some Field Sobriety Exercises, 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.
• Language Problems: when you don’t speak English as your primary language and you did not understand the instructions.

4. Challenge The Search After A Stop

If a search is conducted during your DUI stop, and it leads to incriminating evidence, or other criminal charges, we try to challenge it if the facts allow. After a DUI investigation begins, 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, or weapons, etc., the physical evidence could be suppressed or thrown out by the Trial Court if the circumstances of the search are unreasonable.

5. Challenge The Arrest

If you are arrested during your DUI stop, we always look at the facts to see if it can be challenged. 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.

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. The arrest must be based on facts showing a probability that a driver is actually 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.

6. Challenge The Refusal

If you are arrested during your DUI stop, you will be asked to submit to a test of your breath, blood, or urine. In Florida, if you refuse to submit to testing the first time, it results in a one year suspension of your license and the State may introduce evidence of your refusal as consciousness of guilt at your trial. But if you refuse a second time (or more than a second time), you can actually be charged with a crime. At My DUI Guy, we look at all refusals to establish a defense if possible. 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. If you refuse to submit to this test, you could be charged with the additional crime of Refusal. After your arrest for DUI, 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 thrown out at trial. By failing to follow the proper procedures, your Alleged Refusal was Not Willful. At My DUI Guy, we can obtain this evidence in your DUI refusal case to see if the officer read the warning properly. In some instances, this procedure may be on video. So how do we defend against the accusation that you refused?

1. By challenging the Officer’s right to ask for a breath sample

An officer must have at least a reasonable suspicion that you are under the influence of drugs or alcohol in order to request a breath, urine, or blood test. When looking over your case, the attorney who represents you will investigate to make sure the officer had the proper level of suspicion necessary to ask you for the sample. If they did not, it is possible to have your refusal thrown out.

2. By investigating the circumstances surrounding your “refusal.”

• Language Barriers: 
Sometimes officers get impatient with the people they arrest. This is especially true in DUI cases. In cases where there is a language barrier, the officer may get frustrated with trying to explain how implied consent works. When this happens, an impatient officer may just give up and call the situation a refusal when you did not actually refuse.
• Impatience: 
When a person asks a lot of questions about the testing or asks for an attorney prior to testing officers are placed in a touchy situation. They are only allowed to give certain types of advice, and in most cases, you are not entitled to speak with an attorney before submitting to testing. If you insist on asking many questions or if you continue to demand an attorney, officers can get impatient. Rather than go through the trouble of explaining how the process works, they mark the case as a refusal and wash their hands of the situation. This is often accompanied by remarks such as “the subject was uncooperative.”
• Medical Issues 
Sometimes a person is unable due to physical or medical conditions to provide a sample. In elderly people conditions such as COPD can prevent the proper volume of air from being met. In cases of urine testing an individual may have “shy bladder” making it hard to urinate while being watched. Sometimes a person is mentally incapable of making a decision. In these cases, an officer will often just mark the case as a “refusal” rather than taking the time to notate the surrounding issues.

These are just some of the ways an attorney may be able to show that you did not truly refuse the test. At My DUI Guy, we will investigate every possible scenario to determine if your “refusal” is truly valid.

7. Challenge The Breath Test

The most litigated part of DUI is the breath test. The breath test is performed by a machine that measures the amount of alcohol in your lungs. That result is measured and provided in a printout to law enforcement. Law enforcement then uses that result to determine if you are “over the limit.” In Florida, the Intoxilyzer 8000 is used to measure this breath alcohol level. The Intoxilyzer method detects alcohol by infrared spectroscopy. Infrared spectroscopy measures molecules of different substances by the way they absorb light. The machine detects alcohol by the amount of light the alcohol molecules absorb and uses it to determine the amount of alcohol in the sample. There are several ways that DUI attorneys challenge Intoxilyzer 8000 machines and the results.

• The proper protocol was not followed: Florida has a set of practices in place to ensure an accurate result. These safeguards include a 20-minute observation period, proper placement and use of the machine, and proper sign in procedures to show who was operating the equipment and when. If the proper procedure set out in the agency is not followed, the result may be ruled unreliable and be excluded from introduction at trial.
• The machine was not properly inspected: Each Intoxilyzer 8000 has scheduled maintenance. If the attorney can show that the machine has not been properly inspected or maintained the result may be ruled to be unreliable. At times an attorney may even discover the machine has failed inspection. In these cases, the result may also be found to be unreliable and will not be allowed for use at trial.
• Challenging the machine itself: Currently there is litigation pending regarding whether the breath testing method violates due process concerns. The litigation involving design and software matters has been in place for several years. This type of defense can be long, expensive and time consuming. But in some counties in Florida it has been successful. Challenging the breath test in Florida is a highly specialized area requiring expert testimony and knowledge. Make sure you consult a DUI attorney with experience in this area if you wish to raise this defense.
• How will my Attorney challenge the breath testing results?
• Did the Officer observe you for 20-minutes straight prior to the breath test?
• Did you spit up or regurgitate during the 20-minute observation period?
• Did you have dentures or false teeth in during the breath test?
• Did the Officer tell you to “keep blowing” during the breath test?
• Was the machine properly calibrated?
• Did the Officer read Implied Consent properly if you first refused?

8. Challenge The Blood / Urine Results

Improper testing and storage of blood alcohol samples:

In Florida, the standards for obtaining, and maintaining blood and urine results are complicated, and if not followed properly, could lead to a dismissal of your case. For example, police must arrange for a proper blood-alcohol analysis by a trained and licensed phlebotomist as quickly as possible following arrest. Unreasonable wait times or testing by an untrained laboratory technician could be possible defenses against the results. Additionally, police are required to ensure that blood samples are properly maintained after the test to avoid fermentation, contamination, or mislabeling. If questions arise as to the integrity of the sample, it could be thrown out—leaving the prosecution with little to rely upon while advancing its case.

DUI Blood Test:

• 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 is “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.

Urine Test:

• Some experts believe a urine test is completely unreliable when used to estimate blood alcohol content;
• Urine tests to measure prescription drugs are sometimes inadmissible because the quantity of drugs in the system cannot be quantified;
• Urine tests to measure marijuana consumption can also be 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.

Challenging The Blood Test:

There are two ways that Ancient City Law can challenge the blood test result.

• The first is to challenge whether or not the officer had the right to take a blood sample from you to begin with.
• The second is to challenge the result itself.

Challenging the officer’s right to take or acquire your blood sample is done through a Motion to Suppress. Challenging the “results” is more often a question for the jury.

Did the Officer have the right to take blood?

Blood is a very personal and private matter because it is actually a part of us. Because blood draws involve a personal intrusion to take evidence out of our bodies, each state has very strict rules governing its appropriateness. In Florida, blood can only be taken by force in situations where there is serious bodily injury or death. Otherwise, the Officer must have your permission. To obtain your permission the Officer must properly inform you of your rights. If this is not done correctly, the attorney can challenge the entry of the blood result even if you agreed to give the sample!

Can I ask for a blood test instead of a breath test?

In Florida you do not have a right to have blood taken instead of undergoing a breath or urine test. You must give the breath or urine sample first. But if you give the breath or urine sample, you can request a blood test. In theory the officer has to make a “reasonable accommodation”’ to help you obtain an independent blood test. But in most cases, all the Officer will do is hand you a phone book in a room with a phone. But you do have the right to ask.

How will I know if my blood result is correct?

If you are unsuccessful in suppressing a blood sample that was taken either forcibly or by consent, Ancient City Law can still challenge the result. Blood is very fragile. In order for a test result to be accurate there are several protocols that must be followed. These protocols include:

• Mandating the type of needle and tubing used to draw the sample;
• Mandating the solution used to clean the draw site;
• Mandating storage conditions;
• Mandating what personnel may take the sample;
• Mandating packaging to maintain integrity and assuring it is indeed your particular sample. It is not uncommon for an officer to respond to a DUI call, obtain a blood sample, place it in the car for transport to the testing or storage location, only to be called to another emergency.

In these cases, a sample may be compromised from sitting in a trunk for longer than the law allows. In other cases, the integrity of the seal may be broken or the improper equipment can be used. Often a nurse who is unaware of the reason for the draw will clean the site with an alcohol pad prior to taking the blood thereby compromising the result. Even if the blood is taken correctly, there are other ways the result obtained can be inaccurate. If the equipment processing the blood is not properly calibrated, or if it is used by an unskilled technician, an error can occur. At times, samples have been misplaced or mislabeled leading to incorrect results. The bottom line is that there are several ways Ancient City Law can challenge the accuracy of the blood sample. To see if any of these defenses apply to your case, contact My DUI Guy, a division of Ancient City Law today!

Challenging The Urine Test:

Urine tests are usually given when an officer feels the person they have arrested for DUI is under the influence of drugs rather than alcohol. At times, a urine test may be requested because the breath testing machine is unavailable or not working properly. Other times it is given because an Officer feels that the person is under the influence of alcohol, but the breath test shows they are wrong. So the Officer will go on a “fishing expedition” and request the urine to see if they can find something, anything, to justify the arrest. Florida has a protocol whereby a breath test is given before a urine test as part of procedure. If the officer has stated all along that he feels that you are under the influence of some type of drug, it probably makes no difference that you took the breath test first. But, if you took a breath test and “passed” and the Officer gets mad because that is not expected result, Ancient City Law may be able to file a motion to suppress the results of your urine test if one is taken.

How do you challenge Urine Results?

Urine results are not as accurate as blood results for testing. But the way you challenge the result is very similar. Some urine tests allow for a “level” to be measured. That is, it tells you how much of a substance is found in the sample. In most cases, however, all that is reported is that there is a substance. Depending on the substance found, it may be impossible to say with any accuracy when you ingested what was found. Some drugs such as cocaine stay in the system for a very short period of time. Other drugs such as marijuana can stay in person’s system for up to a month. Ancient City Law will be able to use this knowledge to your advantage to prove that there is no way to tell when you ingested the substance, let alone determine it was in your system at the time you were driving. The methods used to test the result can also be challenged. If the operator or technician does something incorrectly it can compromise the result. If the machine is not properly calibrated it can compromise the results. If labels are mishandled it can lead to an inaccurate result. All of these defenses can be explored with the help Ancient City Law.

9. Suppress Your Statements

During a DUI stop you often make several statements. Some are in response to questions from law enforcement, and some may be spontaneous. If these statements were obtained illegally, they may be thrown out, and your charges may be reduced, or your case dismissed.

Crash or Accident Report Privilege

The accident report privilege is a protection that allows you to comply with local laws regarding accident reports without violating your constitutional right to remain silent guaranteed by the Fifth Amendment of the Constitution. Florida law states that if you are involved in an accident, you must remain on scene. You must identify the driver and exchange insurance information. But if you remain on scene and tell the Officer you were driving, you could be admitting to an element of a crime. If the officer thinks you have been drinking and as a result that was a factor in the accident, you would have given him all the evidence needed to sustain a charge. This is not allowed by the 5th Amendment. To allow for you to comply with the accident laws and to keep your protections in place that are afforded by the Constitution, there is an Accident Report Privilege. This says that anything discovered through the accident investigation can’t be used against you. The Officer must “change hats.” Changing hats means that the Officer must advise you that he or she is starting a criminal investigation and discover the information all over again. It is only then that it can be used against you. If the Officer doesn’t change hats properly, any information obtained may be thrown out. If it can’t be used against you, it is possible that you will have a good chance of beating the charge. Using the accident report privilege as a defense can be complicated. To be used effectively you need to contact Ancient City Law to see if it applies to your case.

Miranda Warnings in DUI Cases

Under the Constitution, you have the Right to Remain silent when being question while you are detained. 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 that you watch what you say, especially if you have been drinking. Nevertheless, if you do say anything incriminating, My DUI Guy, a Division of Ancient City Law may still be able to suppress your incriminating statements. 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 after the arrest. 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 your statements.

10. During Trial

In Florida there are many defenses that are available to people arrested and charged with DUI. If we are not able to suppress evidence to the extent that your case cannot proceed, or if we are unable to have the case dismissed outright, your case may proceed to trial. If it goes to trial, you will have to present a defense. There are several defenses that can be asserted on your behalf. These defenses fall into two basic categories. The first is Affirmative Defenses and the second is Defenses that Negate an Element of the Charge.

Affirmative Defenses:

Affirmative Defenses are defenses where you are admitting that you were DUI, but claim there were circumstances that excuse the behavior. In short, you are saying that because of these circumstances, you really are not guilty. The five most common affirmative defenses for a DUI charge are:

• Necessity
• Duress
• Entrapment
• Mistaken fact
• Involuntary Intoxication

Defenses Negating an Element

In order to prove a DUI charge the State must show that you were: Driving or in actual physical control of a vehicle You were under the influence of alcohol or drugs Your normal faculties were impaired Each of these portions of the charge is considered “an element” and must be proven beyond a reasonable doubt by the State. When you use a defense that takes one of these away elements, you take away the State’s ability to prove all the parts of the case required to sustain a conviction. The most common defenses in this category are: Wheel Witness (no proof you were the driver) Actual Physical Control (no proof you had control of the vehicle) Inoperability (no proof the vehicle was not able to be driven) The defense that you use in your case is dependent on the individual facts of your particular case. Sometimes we can use more than one defense in order to increase your chances of being found not guilty at trial.

Affirmative Defenses

Necessity:

Necessity is an Affirmative Defense to a DUI charge. If you assert the defense of necessity, you are telling the Court you committed the crime of DUI because there was no other option. There was some type of emergency situation that mandated your conduct. The emergency can be manmade or some type of natural cause or illness. But it must be an actual emergency. In most jurisdictions, for necessity to be successful as a defense, the situation must be pretty extraordinary. The driver must be faced with imminent danger, death or bodily harm to themselves or another. For example: If you have a case where you drink because you have no plans to drive, and then are forced to do so, you can assert the necessity defense. Medical emergencies and natural disasters can create this scenario. But let’s say the reason you think it is important to drive is that your car will be towed. That is not necessity. It is inconvenient but not necessary. Necessity is not a defense that is often used: Many people would like to assert the necessity defense. But it is rare that the situation rises to the level of emergency needed for it to be successful. The most common scenario of a necessity defense usually arises in cases of severe domestic violence or in situations where a parent believes a child to be in danger. But whether the Court will allow the defense under those circumstances varies from jurisdiction to jurisdiction.

Duress:

When you assert the defense of duress, you have to admit to the crime of DUI. However, you are asking the Court to find you not guilty because someone made you commit the crime. Duress has two elements of its own. They are:

1. Someone must have made you commit the crime by threatening to harm or kill you (or someone very close to you such as a child) and
2. They must have had the immediate ability to carry out the threat.

Let’s say you have been drinking and have no plans to drive. But your ex comes over to your home with a gun and threatens to kill you if you don’t drive them to the store. This can be an example of duress. Same scenario, but your ex is not at your house. Your ex calls you on the phone and threatens you from a city 20 miles away. There is no way they can shoot you over the phone and by the time they drove 20 miles you could call for help. The danger is not immediate. Duress won’t work. Duress is another defense that is not used often in DUI cases. But it is an available defense in most jurisdictions. Like necessity it is usually seen in cases of severe domestic violence or in cases where a child has been taken by a non-custodial parent.

Entrapment:

Entrapment is a defense where you claim a Law Enforcement Officer or their agent caused you to commit a crime you would not commit. In order for you to be found guilty in an entrapment case, the State must show that you had a predisposition to commit the crime charged. Predisposition means that you have a reason to want to commit the crime or to try to commit the crime, or that you have committed the crime before. This holds true even if you have not gotten caught committing the crime before. Entrapment is not a defense that is used often. In fact, it is very hard to prove. But under some circumstances it may be appropriate. For example:

• You see an attractive person at the bar. This person asks you if you would like a drink. You usually don’t drink when you come to the bar, or if you do you don’t drink much. But this person is attractive and interested in you – and they are buying. So you drink. At the end of the night, you tell this person that you are unable to drive and you want to call a cab. The person says that you are fine to drive, and you should just get in and take them home. As soon as you leave the parking lot you are pulled for DUI. It turns out that the “person” buying you drinks was an undercover officer. That is an example of entrapment.
• You are sitting in the bar drinking. There is an officer sitting at the door working an extra shift as security. As you leave, he tells you that you are probably a bit too drunk to be driving. You tell him thanks but you are fine. You leave the bar and the other officer pulls you over and you are arrested. Neither the officer at the bar or the one that pulled you over told you to drink, or to get into the car, or to drive. The officer simply took advantage of the situation. That is not entrapment.

The entrapment defense is used mainly in cases that involve the sale or purchase of drugs. It is not usually asserted in cases involving DUI. But that does not mean it cannot be successful in certain cases. In order to determine if the facts in your case support an entrapment defense contact My DUI Guy, a Division of Ancient City Law today!

Mistaken Fact:

Mistaken fact means just that, there was a mistake or misunderstanding about one of the elements in your DUI case. For example: Let’s say you usually drink non-alcoholic beer. But you go to a party and someone pours your drink in a glass. You thought it was your normal non-alcoholic variety. But it wasn’t. It was a regular beer. You have two and get pulled over and are arrested for DUI. There could be a mistaken fact defense.

• You were not driving.
• You did not know how medication would affect you when you started to drive.

In Florida, you do not have to have the intention to be DUI at the time the offense is committed. As a result, this defense is not generally used. It is sometimes asserted in cases where people are taking prescribed medication and don’t realize how the alcohol would interact with the medication. But because of warning labels this is not usually allowed. However, at My DUI Guy, a Division of Ancient City Law, we can advise you if this defense is available to you.

Involuntary Intoxication:

Involuntary intoxication means that you did not ingest alcohol or drugs of your own free will. Because you did not purposefully ingest the substance that caused you to be impaired you can’t be guilty of DUI.

• Involuntary intoxication is most often asserted when people are given the date rape drug. This causes them to black out and not known what is going on. This is an appropriate way to assert the involuntary intoxication defense.
• If you say “I drank these three shots and didn’t realize how they would affect me” that will not cut it as an involuntary intoxication.

In some instances, the involuntary intoxication defense is asserted when dealing with prescription medication. But since most medications have warning labels specifically warning an individual not to drive until the full effects are known it is usually not successful. Again, an experienced attorney can advise you if your particular facts support an involuntary intoxication defense.

Defenses That Negate An Element

In order to prove the crime of DUI, the State must prove every element of the case. They must prove that:

1. You were driving or in actual physical control of a vehicle

2. while under the influence of drugs or alcohol
3. to the point that your normal faculties were impaired.

The State must prove all three elements. If you can assert a defense that takes away or disproves an element, then the State is unable to prove their case and you will be found not guilty. The most common defenses that negate elements are:

• Wheel Witness Defense: Where you assert that the State can’t prove who was driving
• Actual Physical Control: Where you assert that the state can’t prove you controlled the vehicle; and
• Inoperability: Where you assert that no one could drive the car because it doesn’t work These defenses are very common in DUI practice and can be successful if used effectively by My DUI Guy, a Division of Ancient City Law.

Wheel Witness:

The first element that the State must show to prove DUI is that you were driving or in actual physical control of a vehicle. To prove this the State must present evidence that you were the driver. If there is a wheel witness issue, you are asserting that the State can’t prove this in your case. In some cases, an Officer will arrive on scene after a crash or after a report of a bad driver has been made. When the officer arrives, there will be several people walking around the car. Sometimes when the Officer arrives to the scene to investigate a DUI, no one will be behind the wheel of the car. Everyone will have left the scene. In other cases, no one will have possession of the car keys. Or it could be no one person wants to admit who was driving, or that different individuals identify two or more people as a possible driver. In these cases, it is hard for the State to prove who was driving or in actual physical control of the vehicle. The State may not use hearsay to prove their case. They must present some type of solid evidence to connect you to the driver’s seat. If no one knows that you were driving the car, or if the Officer can’t say for sure that he or she saw you drive, that makes proving the first element difficult. If you were stopped outside of your car, or with other people outside of the car, or if you were not found to be in possession of car keys the State may have a “wheel witness” issue. When you assert the “wheel witness” defense, you make it difficult for the State to prove the first element of the case. That is, the State can’t prove that you were the driver. If they are unable to do this you can be found not guilty.

Actual Physical Control:

If you are not driving, you must be in actual physical control of the vehicle for the State to prove you guilty of DUI. Florida added this element to the crime of DUI because so many people were “passed out” behind the wheel or were found outside of the car walking away when Officers finally arrived. In these cases, the person accused was not technically “driving” so people were found not guilty. The State could not have that! So now all they need to prove is “physical control.”

• Actual physical control means that you are capable of operating the vehicle if you felt the need to do so. The most common scenario used to prove physical control is the case where the keys are in the ignition with you in the driver’s seat. You could wake up an start the car. That is physical control.
• But if you are asleep in the car and the keys are in the trunk, then there is no physical control. You would not be able to start the car with the keys in the trunk. You would have to take a few affirmative steps to be able to drive.

This is the defense of actual physical control. You are not driving, you do not have the ability to be driving, and therefore you can’t be driving under the influence. If you feel the facts of your case support this defense, contact My DUI Guy, a Division of Ancient City Law to discuss your options.

Inoperability:

In order to be found guilty of DUI, the state must prove that you were driving or in actual physical control of a vehicle. Inoperability is a defense that states you could not have been driving or in actual physical control because the vehicle in question does not work. In order for this defense to work, you cannot have caused the inoperability at the time you are found and investigated for DUI. So, if you wrecked the car prior to law enforcement arriving, the defense won’t work. If someone else wrecked the car and you arrived on the scene after the fact, you may have a defense. Inoperability is not a common DUI defense. The facts have to be very specific in order for the defense to work. If you think you have a case where inoperability could be a defense, contact My DUI Guy, a Division of Ancient City Law today.

Arguments At Trial:

If you do not have grounds to file a Motion to Suppress or Dismiss, or if you lose the Motion to Suppress or Dismiss, MY DUI GUY, A Division of Ancient City Law can still raise several defenses. We will challenge all aspects of the investigation to raise reasonable doubt. The areas challenged at trial can be the:

• Field Sobriety Exercises
• The Breath Test Results
• Blood Test Results and/or
• Urine Results
• Video Evidence
• Officers Disciplinary Records
• Violations of the Rules of Evidence & Procedure

Some of these challenges are also raised in motion practice, but they are more often seen as defenses throughout a jury trial.

Challenging Video Evidence:

Video evidence of an arrest and conviction is often admitted as evidence in a Florida DUI trial. Bodycam video may record police communications and interactions that show due process was violated or may contradict a police officers’ report. Failure to preserve these tapes upon request may render any related evidence invalid. Video of driver conduct at a police station may also show a sober, competent individual, contrary to police descriptions of the arrest for DUI in FL.

Officer’s Disciplinary or Internal Affairs File:

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.

Violations of the Rules of Evidence & Procedure:

Finally, there are several DUI defenses that may not arise until the actual day of trial, including violations of the state rules of civil procedure and evidence. This broad category encompasses the rules against hearsay, the introduction of improper character evidence, and the use of unauthenticated documents, recordings, or photographs. For example, the prosecution may attempt to introduce evidence of a police video purporting to derive from the dashboard camera of an officer present at the defendant’s field sobriety test. However, prosecution must elicit testimony from the officer that he was, in fact, present at the time of the FSE, that the individual featured in the video is the defendant, and that the recording in question occurred on the date and time asserted by the prosecution. Otherwise, the video will be excluded.

Conclusion:

As you can see, DUI cases can be extremely complex. That’s why you need an attorney that views your case through the eyes of a Former Judge. Contact My DUI Guy, a Division of Ancient Law today and let us help protect your rights.