Florida DUI Defense Strategies

In Florida there are many defenses that are available to people arrested and charged with DUI. If the attorney is not able to suppress evidence to the extent that your case can not proceed, or if the attorney is not able to have the case dismissed outright, your case can 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 categories: affirmative defenses and defenses that negate an element of the charge.

What is the difference between an Affirmative Defense and a Defense that Negates an Element?

Affirmative Defenses

In an affirmative defense, you are admitting that you were DUI. But you are stating that there are additional facts that defeat or mitigate the legal consequences of your otherwise unlawful conduct. Essentially you are saying that because of these additional facts, you really are not guilty. The five 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:

  1. Driving or in actual physical control of a vehicle
  2. While under the influence of alcohol or drugs
  3. to the extent that your normal faculties were impaired

Each of these portions of the charge is considered “an element.” 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 an attorney will use more than one defense in order to boost your chances of being found not guilty at trial.


Affirmative defenses are defenses where you admit that you were DUI, but claim that there were circumstances that excuse the behavior. These circumstances are so important the jury should find you not guilty. You are essentially telling the Court “Yeah, I did it. But I had such a good reason I am not guilty!” Affirmative defenses can be very risky. Only an experienced DUI attorney can tell you if any of the affirmative defenses listed below can work in your case.


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 man made 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.


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 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.

  • 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 you should ask a local experienced DUI attorney.


Mistaken fact means just that, there was a mistake or misunderstanding about one of the elements in your DUI case. Not many jurisdictions allow for a mistaken fact defense. Mistaken fact means you didn’t realize how drunk you were when you got behind the wheel, or how a medication or drug would affect you when you started to drive.

  • 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.

In most states, you do not have to have the intention to be DUI at the time the offense is committed. So 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, an experienced attorney can advise you if the option is available to you.


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 jurisdictions 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.


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 a DUI attorney.


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 you 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.


If you are not driving, you must be in actual physical control of the vehicle for the State to prove you guilty of DUI. Many states 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 your local DUI attorney to discuss your options.


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, you should contact an experienced DUI attorney to discuss if this option is appropriate.


The most common strategy in a DUI case is to file a Motion to Suppress. A motion to suppress asks 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 forth a motion, the attorney must have “grounds.” Grounds are legal reasons for the Court to grant the motion. The most common grounds for a motion to suppress are:

  • Accident Report Privilege
  • Challenging the Traffic Stop
  • Challenging Field Sobriety Tests
  • Challenging Breathe Test
  • Challenging Blood Test
  • Challenging Urine Test
  • Refusals

When your attorney lists one or more of these grounds, the attorney is 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. That the evidence for some reason or another is not reliable and therefore cannot be used against you.

If the attorney is successful in the motion, the evidence is not allowed to be presented in Court. This can mean dismissal of your case. Even if the attorney loses the motion to suppress, he or she can still present the defense in trial in an attempt to raise reasonable doubt for the jury.

Suppression defenses allow an attorney to have details of your case thrown out so that they cannot be used against you at trial. Most of the time the evidence that is thrown out is such a large part of the State’s case, the State cannot continue to prosecute you without it. The two basic categories for suppression defenses are:

  • Challenges to the initial encounter with law enforcement and
  • Challenge to the physical evidence

Winning any type of challenge to your case can result in a complete dismissal. Even if it is not successful in suppressing evidence, your attorney can use the same approach to create reasonable doubt for a jury. But in order for it to be effective, you must have an attorney who is familiar with these defenses and has the ability to effectively present them.


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 the assistance of a local, qualified DUI attorney.


Challenging the traffic stop is the most used method of defense in a DUI case. When you challenge the stop it means that the defense attorney challenges the reason the officer had for stopping you in the first place. If the attorney is successful in challenging the stop, everything that happened after the encounter is thrown out. This usually results 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
    • For instance, 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.
  • 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.
  • The officer did not observe what is required for probable cause
    • Probable cause is a legal standard. Whether or not you rose to the level needed to make an arrest is a highly technical legal defense that should only b explained by a licensed attorney.
  • 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.

Proving any of these in court can result in suppression of the evidence against you and dismissal of your case.


If you do not have grounds to file a motion to suppress or dismiss, or if you lose the motion to suppress or dismiss, the attorney you hire can still raise several defenses. The attorney will challenge all aspects of the investigation to raise reasonable doubt. The areas challenged at trial are the:

  • Field Sobriety Exercises
  • The Breath Test Results
  • Blood Test Results and/or
  • Urine Results

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


Almost everyone is familiar with the Field Sobriety investigation that is performed roadside during a stop for DUI. These are the physical tasks you see performed on shows such as “COPS” or other reality shows. You may have tried to do them yourself as a joke or party prank. But what do these exercises really consist of and how are they used? More importantly, how can the attorney challenge them in order to keep you from a DUI charge?

What are Field Sobriety Exercises (or FSTs)?

FSTs are the physical tasks designed by law enforcement as a way to measure a person’s sobriety. The most common FSTs are:

  1. Horizontal Gaze Nystagmus or “HGN” o “the eye test”
  2. Walk and Turn
  3. On Leg Stand

Officers may also use:

  1. Finger to Nose
  2. Alphabet Test

How does an officer use the FSTs to determine if you are impaired?

Officers look for certain “clues’ or “indicators” in each exercise to try to make a determination as to a person’s sobriety. 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.

What exactly do they ask you to do for the FSTs?


HGN is performed by asking the potential arrestee to gaze at a fixed object such as a pen or a light. They call this pen or light a “stimulus.” The officer asks the person to keep their head still, and to follow the stimulus with their eyes only. The officer has the person’s eyes move toward their “maximum deviation.” Maximum deviation is as far as the eye can go in one direction or another. As the eye is reaching this maximum deviation the officer looks for an involuntary jerking or slight movement of the eye to determine if the person is under the influence.


For the walk and turn, the officer will ask the driver of the car to stand with their hands to their side. They will instruct them that they need to stand with their left foot on the line, with the right foot in front of it, also on the line. The heel of the right foot must touch the toe of the left foot. The person will be instructed to stand in manner until the officer completes the instructions. The officer will then explain the exercise while demonstrating it. He will instruct the person to take nine heel to toe steps, touching the heel to toe, counting each step out loud, while remaining on the line. When the person gets to nine, they are to keep the foot on the line, take a series of small steps to make a turn, and then take nine heel to toe steps back. Again they must stay on the line and count each step out loud. The hands are to remain at the person’s side.

This is known as a “divided attention” exercise. You must physically perform the steps correctly while mentally counting the steps correctly out loud. You must also keep your hands at your side which is counter-intuitive. The officer will look to see if you fail to stay on the line, fail to count correctly, forget to touch heel to toe or fail to turn correctly. Every time you do something “wrong” the officer counts it against you in your DUI investigation.        


This exercise is performed the way it sounds. The officer tells you to stand on one leg, while raising the other leg 6 inches above the ground. While doing this you must count out loud to 30 and you must not raise your arms to help you balance.

The office will “count off” if you put your foot down to regain balance, if you sway, if you raise your arms, if you bend your leg, or if you do not count correctly. This counts against you in the officer’s DUI investigation.

These three FSTs are what are known as “the standard battery.” But it is possible that an officer may run into a person with one leg, or who is in a wheelchair or who has another medical condition making these impossible to perform. Or in other cases the officer can’t make up their mind about the results of the first three so they opt to go further. If any of these situations arise the officer may ask the party to perform the finger to nose or alphabet test.


When you are asked to perform the finger to nose, the officer will have you stand with your feet together and head tilted back (if you are in a wheelchair he will ask just for your head to be tilted back). The officer will ask you to extend your arms out to your sides and extend your first finger out as if you were pointing. The office will then say “left” or “right” and you will be required to touch the tip of your finger to the tip of your nose.

If you use the wrong finger, or if you miss your nose, the officer counts it against you. If you sway or lose balance while your head is tipped back this also counts against you. If you use the pad of your finger instead of the very tip, some officers will hold that against you as well.


The alphabet test is very basic. The officer will ask you to recite a certain portion of the alphabet. For example, they will ask that you recite C-Q, or G-P to see if you can do this correctly. You are not allowed to “sing” the alphabet. You must recite it slowly. At one time there was a request to recite the alphabet backward. But that is not standard practice at this time.

These exercises are said to be a reliable determination of a person’s sobriety. But studies have shown that may not actually be the case. When you speak with an experienced DUI attorney, he or she can discuss any and all issues that arise from the improper execution of these exercises, and how that can be used to your advantage, or disadvantage at trial.


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.

So how will my attorney challenge the breath testing result?

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.


There are two ways that your attorney 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 result is more often a question for the jury.

Did the officer have the right to take the blood?

Blood is a very personal and private matter. 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!

****Changes in the law****

Recently the Supreme Court has ruled under Missouri v. McNeely, No. 11-1425, in the majority of circumstances, in order for an officer to obtain a forced blood sample, an officer must first obtain a warrant. How this will impact the current state of law in every state remains to be seen. But it will be very helpful in allowing more successful challenges to the forced blood draw samples by DUI attorneys all over the United States.

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 without 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, your attorney 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 a DUI attorney can challenge the accuracy of the blood sample. To see which may apply to you consult a knowledgeable attorney.


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, an attorney may be able to file a motion to suppress the results of your urine test if one is taken.

How do you challenge 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. A good Dui attorney 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 of an experienced DUI attorney.


In times past, there were no laws governing refusal of a breath test. It did not take long for the States to figure out that if there was no breath, blood or urine result, winning the case was almost impossible. So every state enacted laws governing refusals.

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.

But what if you didn’t really refuse? How can an attorney defend against the accusation that you refused?

1) By challenging the officer’s right to ask for a 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. A good Dui attorney will investigate every possible scenario to determine if the refusal is truly valid.

These are only some of the defenses that may be raised in your DUI case. Depending on the judges and jurors in your area, some of these defenses may work better than others. Only a DUI attorney can explain each and every option and whether or not it has a chance of being successful.

This page is not intended to substitute for legal advice. Rather it is information for a starting point for discussion with a qualified attorney. Remember, it is up to the State to prove your case beyond and to the exclusion of every reasonable doubt. Arrests do not equal guilt. To discuss your options and possible avoid conviction you should speak with an experienced attorney as soon as possible.