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Tampa, FL 33602
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Tampa Attorney Explains DUI Defenses

At the Sammis Law Firm, our attorneys focus on defending DUI cases. As a result, we pay attention to new developments in the law and defenses that can help us win our cases.

When you come in for the initial consultation, we can discuss the facts of your case and particular defenses that might apply. If you were arrested for Driving Under the Influence ("DUI"), then contact an experienced and aggressive DUI attorney at the Sammis Law Firm.

Our offices are located in downtown Tampa. We represent clients throughout Tampa and Plant City in Hillsborough County, and the surrounding counties throughout Tampa Bay.


Types of Defenses in DUI Cases

· Motions to Suppress or Exclude Evidence in the DUI Case
· DUI and Drug Recognition (DRE) Expert Testimony
· DUI Roadblock or Checkpoint
· 10 Day Rule and the Formal Review Hearing


Motion to Suppress or Exclude Evidence in Your Drunk Driving Case

One of the most effective ways to fight your case is to file and litigate motions to suppress or exclude certain evidence in your case, including:

  1. Showing that the initial stop of the vehicle was without reasonable suspension or probable cause under Florida law;

  2. Attacking procedures used by the police in performing a roadblock (or checkpoint stop) of your vehicle;

  3. Arguing that the officer made an arrest before sufficient probable cause existed to indicate that you were driving under the influence;

  4. Demonstrating that the law enforcement officer violated your rights by not advising you of your Miranda warnings;

  5. Attacking that the results of your breath test because of problems with the maintenance or calibration of the machine;

  6. Showing that the officer did not preserve evidence, including a video tape of your driving pattern, performance on the roadside tests, or alleged refusal;

  7. Showing the officer administered the roadside sobriety tests improperly;

  8. Showing that your implied consent warnings were not properly given, thereby making any mention of your alleged "refusal" inadmissible; or

  9. Using special defenses that may be available to you depending on the particular facts of the case including special defenses available to women charged with DUI.

By filing and litigating a motion to suppress or exclude your attorney can fight to dismantle the prosecutor's case one piece of evidence at a time. If any evidence is excluded then the prosecutor's chances for a successful prosecution can drop dramatically.

As a result, the negotiations often get better. By aggressively litigating motions to suppress and exclude evidence, we can often create the best opportunities for our clients to avoid a conviction.

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DUI Defense of Inoperability

A defendant may be found guilty of this offense if the defendant (1) drove or is driving a vehicle while under the influence or (2) is in actual physical control of a vehicle while under the influence. While the State is not required to prove that the vehicle is capable of operation, inoperability may be a defense to whether the defendant was in actual physical control of the vehicle. see Standard Jury Instructions in Criminal Cases (97-2), 723 So. 2d 123, 144-47 (Fla. 1998).

The defense of inoperability is based upon the premise that: 

a person ought not be convicted of having a vehicle under his or her control while intoxicated when in fact the vehicle was inoperable, the intoxicated person did not operate the vehicle prior to its becoming disabled, and the vehicle's mechanical problems were such that it could not under any reasonable circumstances have been operated by the person accused.

Jones v. State, 510 So. 2d at 1149.

When a vehicle's condition renders it incapable of being operated and it cannot be readily made operable due to the necessity of making substantial mechanical repairs or other factors which reflect that the vehicle's disability is not just temporary, then physical control is not established. For instance, in Jones v. State, 510 So. 2d 1147, 1149 (Fla. 1st DCA 1987) the court found that the defendant could not be convicted of driving under the influence in light of evidence that the vehicle she was found in was inoperable, the defendant did not operate the vehicle prior to it becoming disabled, and the vehicle's mechanical problems were such that it could not, under any reasonable circumstances, have been operated where vehicle had to be pushed to an automobile repair shop and electrical problems prevented the car from running.

In State v. Carter, 889 S.W.2d 231, 233 (Tenn. Crim. App. 1994), the court found insufficient evidence to support defendant's conviction for driving under the influence because her car was incapable of being operated without substantial mechanical repairs; experienced mechanic testified that the car was “dead,” could not be jump started, and could only be started if the carburetor was replaced or taken apart and thoroughly cleaned.

The “reasonably capable of being rendered operable standard” is applied when a person is charged with driving under the influence and claims either that the vehicle was not operational or that he was not in actual physical control of the vehicle. The rationale for applying the “reasonably capable of being rendered operable standard” is due to the recognition that the law in this area is preventive in nature. Its purpose is to deter intoxicated individuals from getting into their vehicles, except as passengers, and enables law enforcement to apprehend an intoxicated driver before he strikes.

This defense arises when a person is found passed out behind the steering wheel of a vehicle with the keys either in the ignition or on the floor of the vehicle. In those cases, the defendant may be found guilty of DUI because he is in actual physical control of a vehicle which can readily be made operational. In Dep't of Highway Safety & Motor Vehicles v. Prue, 701 So. 2d 637 (Fla. 2d DCA 1997), the court upheld a finding that the subject was in actual physical control while under the influence where the subject was found passed out in a vehicle on the shoulder of a highway, with her face resting on the steering wheel and the keys either in the ignition or on the floor of the vehicle, because she could have used the keys to start the vehicle and drive away.

In State v. Smelter, 674 P.2d 690 (Wash. Ct. App. 1984), the court applied the “reasonably capable of being rendered operable standard” to a driving under the influence statute similar to Florida's, and concluded that the defendant was in actual physical control and, therefore, guilty of the offense, where he was found intoxicated in his car which was out of gas. The court explained that “control” means more than the ability to stop an automobile. It includes the authority to manage it. Smelter, 674 P.2d at 442. “Actual physical control” is the present ability to operate, move, park, or direct whatever use or non-use is to be made of the motor vehicle at the moment. Id.

In Baltrus v. State, 571 So. 2d 75 (Fla. 4th DCA 1990), the court upheld the reversal of a motion to dismiss where the defendant was found passed out and slumped over the steering wheel of his car, with the keys to the car in his hands.

In Fieselman v. State, 537 So. 2d 603 (Fla. 3d DCA 1988), the court erred by dismissing a charge of being in actual physical control of a vehicle while under the influence, where the defendant was found lying down, asleep in the front seat of his automobile, with the engine off but with the keys in the ignition, explaining that the presence of the keys in the ignition led to the inference that the defendant could have started the automobile and have driven away at any time.


DUI and Drug Recognition (DRE) Expert Testimony

For many DUI cases, obtaining the best DUI expert witness can give you a distinct advantage during pre-trial motions, pre-trial negotiations with the prosecutor, and at trial. DUI expert witnesses can be hired to investigate and testify about flaws in the administration, maintenance or calibration of the breath test machine called the "Intoxilyzer 8000."

Many of the expert witnesses that testify about the Intoxilyzer 8000 are former breath test technicians or law enforcement officers who have special training on instructing other officers on how to correctly administer the breath test.

After obtaining any videotaped evidence of your performance on the roadside sobriety exercises, your criminal defense attorney can use expert testimony from former law enforcement officers with special training in administering and scoring field sobriety exercises to attack the mistakes made by the often less experienced DUI arresting officer.

The attorneys at the Sammis Law Firm use expert witnesses in many of our DUI cases. The cost of obtaining an expert to review your case so that the expert can be listed as a witness is very low. In many cases, just the fact that you have an expert willing to testify in your case may make it more likely that the prosecutor will offer to reduce the charges. If the case goes to trial, then the expert witness testimony is often crucial to obtaining a "not guilty" verdict.

The prosecutor will call an expert witness also - the arresting officer or breath test technician. By having your own DUI expert witness, who is often more qualified and experienced than the arresting officer or other state witness, you can put yourself in a position to obtain the best result possible.

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DUI Roadblock or DUI Checkpoint Cases

Law enforcement officers normally need probable cause that a crime or traffic infraction has occurred before they can stop a vehicle. One of the few exceptions to this rule is when the officers stop a vehicle during a DUI roadblock or checkpoints.

If you were arrested for a Florida DUI after being stopped in a roadblock or checkpoint, call our office to speak with a Tampa DUI attorney about filing a motion to suppress. If any of the strict requirements for the DUI roadblock were not followed by the arresting officers then your entire case could be dismissed even if you had an extraordinarily high breath test result.

The Florida Supreme Court has required that before a DUI roadblock is proper under the Fourth Amendment of the Constitution of the United States and Florida law a set of highly detailed written guidelines must be established. Police officers in Hillsborough County, Pinellas County, Polk County, Pasco County, and Hernando County often make mistakes in drafting or executing the DUI roadblock guidelines.

The field officers conducting the DUI roadblock must also follow strict procedures in determining which vehicles to stop. The field officers are typically not allowed to stop certain vehicles that look suspicious while letting other vehicles pass through.

The written DUI guidelines must establish exactly how vehicles are to be selected and the procedures used after the stop occurs. For instance, the police may articulate in the plan that every third vehicle is to be stopped. By articulating such a rule for a Florida DUI roadblock, the officers are not able to deviate from that plan and stop vehicles that they deem "suspicious" while at the scene.

Under Florida law, if the State does not meet the burden of showing that the DUI operational plan sufficiently limited the ability of the field officers to select vehicle, or that the field officers did not follow the plan, and then all evidence of the DUI must be suppressed. That means the officers can not testify about the fact that your vehicle was stopped or use any evidence gathered after the stop. If the officers found drugs in the vehicle after the bad stop, all of the physical evidence is also thrown out.

After winning a DUI motion to suppress because of a bad stop in a DUI roadblock, the prosecutor is usually forced to drop the charges or the court may be required to dismiss the charge.

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DUI Administrative Suspension Hearing with the DMV

After a DUI arrest, the officer typically takes your Florida Driver's License and issues you a temporary driving permit. After your arrest you have only 10 days to request a formal review hearing to fight the administrative suspension of your driver's license. We can prepare all of the necessary paperwork to schedule the administrative hearing.

We then subpoena or compel the appearance of all of the law enforcement officers involved in your arrest. The suspension of your driver license can only be avoided by winning the administrative hearing.

Additionally, by conducting a thorough investigation of your case prior to your administrative hearing, we are able to question the officer that conducted the stop of your vehicle and the arresting officer under oath. The testimony from the administrative hearing can them be used to "impeach" the officers at trial or a motion hearing if their testimony in court differs from their testimony at the administrative hearing.

Additionally, a transcript of the testimony can be provided to the prosecutor to demonstrate weaknesses in the case so that the best pre-trial negotiations can be achieved.

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Defending Against the DUI Charges

Call the attorneys at the Sammis Law Firm to discuss the best strategies to defend you against the charge of Driving Under the Influence ("DUI"). We understand which defenses might work best in front of a particular prosecutor or judge. Let us put our experience defending DUI cases in the criminal justice system in Tampa, Hillsborough County, FL, to work for you.

Call 813-250-0500 to speak with a criminal defense attorney at the Sammis Law Firm about the particular facts and circumstances of your case. We can begin your defense today.


This article was last updated on Friday, May 12, 2017.