How to Challenge a Florida DUI

Many drivers who are charged with DUI in Florida think there isn’t much they can do to avoid being convicted. They are wrong. Experienced DUI defense lawyers have devoted years of study and practice to the law relating to driving under the influence. DUI charges can be successfully defended. 


Prosecuting a DUI in Florida requires the prosecution to prove the police complied with lots of procedural requirements before they can put the evidence against you into the court record. At Stechschulte Nell, Attorneys at Law in Tampa, we’ve successfully represented hundreds of defendants in DUI prosecutions, winning dismissal of many of the cases due to police errors and holes in the state’s case. 



How Florida’s DUI Statute Works 


Section 316.193 of the Florida Statutes prohibits drunk or drugged driving in this state. The law allows the state to prosecute drivers suspected of driving under the influence of alcohol or drugs either with or without the use of a breathalyzer or blood test: 


Driving under the influence is defined as follows: 


The person is driving or in actual physical control of a vehicle within this state and: 


  1. the person is under the influence of alcoholic beverages, any chemical substance . . . or any substance controlled . . . when affected to the extent that the person’s normal faculties are impaired; or 
  2. the person has a blood or breath alcohol content of 0.08 or higher. 


What Does the Prosecution Need to Prove to Win a DUI Conviction in Florida? 


Let’s review what the state prosecutor needs to prove to win a Florida DUI case. Each of the following requirements is either necessary to prove the case or foundational requirements that must be shown before certain statements and items can be admitted into evidence in court. The best DUI defense lawyers in Tampa concentrate on preventing the prosecutor from meeting its burden of proof. 

Prosecution proof requirements: 


Stopping the driver was lawful 


  • Officer had reasonable suspicion that there was a violation of law 


The officer observed signs that the driver was under the influence


  • Slurred speech, a strong odor of alcohol, confusion, incoherence, nonresponsive answers to questions, trouble picking up or handling their license, registration, and proof of insurance, the driver admits drinking, crying, etc., 
  • Officer’s observations justified asking the driver to perform roadside Standardized Field Sobriety Tests (SFSTs), 


Officer administered SFSTs properly


  • The testing area was well lit, on level ground, free of obstructions (rocks, sticks, puddles, etc.), safely away from traffic, free of excessive noise that could distract the driver, 
  • Driver’s footwear was proper, no bare feet, no heels 3” or higher,  
  • Officer accurately instructed the driver on how to perform each test while demonstrating, 
  • Officer correctly scored each “clue,” and did not count one misstep as 2 clues, 
  • Officer administered approved SFSTs, one-legged stand, walk-and-turn, etc.  


Arrest Decision 


  • Is there probable cause for the police officer to arrest the driver for suspicion of DUI? 
  • At what point precisely did the officer decide to arrest the driver? 


Police Department Pre-Breathalyzer Test 


  • Did the officer read the driver their rights before performing a breathalyzer test? 
  • Did the officer continually observe the driver for a period of at least 15 minutes before administering the breathalyzer? (Did the driver belch, vomit, eat, drink, smoke, chew gum, or take medication?) 




  • Machine certified as accurately calibrated 
  • Last inspection and certification date of the machine 
  • Maintenance and upkeep records for machine 
  • Officer operating the machine is currently certified 
  • Test sample reading zero 
  • A new mouthpiece was used for each breath sample 
  • Sufficient subject breath sample for accuracy 
  • Test results recorded properly 
  • Documents signed, certified, and submitted within the statutory time limit. 


Learn More > What is Discovery in a DUI Case?  


DUI Defense Methods of Attacking Prosecution Evidence 


As you can see from the list above, a skilled DUI defense lawyer has a lot to work with, even when their client’s breathalyzer reading is at or above 0.08.  


Every DUI case is different because each officer performs their tasks in their own way, each with slight variations. If the officer deviates significantly from the standard protocols, these deviations can be important enough to defeat the state’s prosecution efforts. 


Value of Dashcams and Body Cams 


Before cameras were installed in police cars, the only evidence available to the prosecutor and defense attorney were the statements and reports of the police officer, the client, and sometimes eyewitnesses.  


Now, cameras seem to be everywhere. Not only do dashcams record the events in front of the police cruiser, but bodycams also are not standard uniform equipment in most police departments. They can provide very powerful evidence in a DUI case. Some video recordings help a prosecutor prove a case, but other videos help win DUI dismissals, acquittals, or very favorable negotiated dispositions on lesser charges. 


Did the officer have probable cause to arrest the driver?  


If the police officer pulled the driver’s vehicle over without reasonable suspicion of an offense, the prosecution’s case can fail. If the police officer’s reported observations and evidence do not constitute “probable cause,” then the DUI prosecution fails.  


Probable cause to arrest a driver for suspicion of DUI must be based on more than mere guesswork. The officer needs to state grounds that persuade a reasonable person viewing the same facts and circumstances that a crime was probably being committed and that the defendant committed it. 


Standardized Field Sobriety Tests as Probable Cause 


To meet the “probable cause to arrest” standard, police usually rely on the driver’s failure to pass the roadside field sobriety tests. If performed correctly, the court will accept failing field sobriety tests as good probable cause for a DUI arrest. The research conducted decades ago indicates that the tests will often correctly identify test subjects whose blood alcohol content (BAC) is 0.10 or above. The fact that the tests were never intended to predict 0.08 BAC is overlooked by most judges. 


Florida drivers are NOT legally obligated to cooperate with any field sobriety tests. Drivers break no law if they refuse to perform them.  


Learn More > Using Video Evidence to Defend DUI Cases 


Tampa DUI Defense 


If you have been charged with a DUI, call our experienced DUI defense lawyers to review your case. Call Stechschulte Nell today; 813-280-1244.  

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