DUI Defense

There are 2 ways the State of Florida can prosecute you for a DUI. The first is by using a breath, blood, or urine test to show your blood alcohol content was .08 or above. The second is by attempting to show your “normal faculties” were impaired while driving the vehicle. To try and prove your normal faculties were impaired, the State (prosecutor) will use the results of the roadside exercises you were asked to perform after being pulled over. If you were seen falling over, forgetting which hand was which, or not able to follow the directions in general, the State will use this as evidence that your normal faculties were impaired and therefore you were driving under the influence. Let’s discuss both scenarios and defenses to each.

First off, the 4th Amendment to the United States Constitution requires we be free from unreasonable searches and seizures. When someone is pulled over in their vehicle, they are seized, so the officer must be able to show “reasonable suspicion” that a law was violated, like running a stop sign, swerving out of the lane, etc. If there was no violation then the stop was unreasonable, and all evidence collected after the stop can be “suppressed”, or not allowed in court, forcing the State to drop the case. This is an avenue of defense that we examine in every DUI case and attorney Mark Lowry has gotten countless cases dismissed by arguing 4th Amendment violations.

Breath Case

When someone gets arrested for DUI they are given the chance to give a breath, blood or urine sample to check the contents and see whether there is alcohol or drugs in their system. If alcohol is suspected, then a breath test will be requested, and if drugs are suspected then a blood or urine test will be requested. If the arrested driver blew at or above .08 then the State will prosecute him/her for DUI. Being that the computer used to read the samples, called the Breathalyzer, is making these findings, one defense we will utilize is checking the maintenance records of that exact machine. If the records do not show perfect maintenance and testing prior to and during the month of the driver’s test, then the results can be thrown out, if not the entire case altogether.

Normal Faculties Case

While there are driver license consequences to refusing a breath, blood or urine test, and criminal consequences if the driver has refused in a prior arrest, the officer cannot force him/her to take the test. So if no test is taken, then the State must prosecute under the “normal faculties” theory. Normal faculties are defined as walk, talk, judge distances, act in emergencies, and otherwise act in your everyday life. This is why the officer requests the driver at roadside to perform roadside exercises, which include the “finger to nose” test, the “walk and turn” test, and the “one legged stand” test. While these tests are optional and do not have to be performed, most drivers do not know that and willingly provide evidence of impairment. The purpose of these exercises is to show that your normal faculties are impaired. Despite them being called “normal” and defined as doing everyday life, these exercises are clearly not what the average person does in his or her day. Regardless, the State will attempt to use these test results as evidence that the driver’s normal faculties were impaired.

Unlike a breath case, there are no scientific results to use in prosecuting you for DUI under this “normal faculties” theory. Therefore it all comes down to argument, and we utilize the fact that the roadside exercises do not show whether someone is impaired, as they are made to fail. Unlike a breath case, there is no magic line, like .08, that will show being under the influence. Instead it is based on how well the driver does on the exercises and whether statements are made that incriminate him or her. So if the driver refused the roadside exercises, and refused the breath, blood or urine tests, the State will have a very hard, if not impossible time trying to prove a DUI.

Attorney Mark Lowry has won dozens of DUI jury trials in his career and has gotten countless DUI cases dismissed or reduced based on these defenses. Contact the firm today to see what we can do for you.

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Attorney Mark Lowry is an exceptional criminal defense lawyer. This is the 2nd time I have Hired Mr. Lowry and he has come through again with his expert knowledge of law and his presentation of facts and legal issues in front of the judge and prosecutors. He is very organized and professional in appearance and workplace. We are very pleased with the way he handled our case from start to finish. Mike
I hired Mark because I was pulled over without a license, no insurance and and expired registration. I did not have any of these due to a past DUI, funds and procrastinating. I was especially nervous about this situation because the arresting officer stated in the police report that I tried to evade them. Joe