Most Florida DUI cases turn on two questions: was the person in control of the vehicle, and can the State prove impairment with evidence that holds up in court. I taught officers at the police academy before I spent more than 25 years in Hillsborough County courtrooms, and I am a member of the National College for DUI Defense. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I built our DUI practice around those two questions, and our attorneys test the stop, the impairment evidence, and the breath or blood result in every case.

What is the legal definition of DUI in Florida?

Florida defines DUI in section 316.193, Florida Statutes. A person commits DUI by driving or being in actual physical control of a vehicle in Florida while one of three conditions is true. The statute gives the State three separate theories, and prosecutors in Hillsborough County often charge more than one in the same case.

The impairment theory needs no test number at all. The two alcohol-level theories need a valid test, and our attorneys at The Brancato Law Firm examine how and when that test was taken, because a number obtained the wrong way can be kept from the jury.

What does “normal faculties” mean in a Florida DUI case?

Normal faculties are the everyday abilities a sober person uses to drive. Section 316.1934, Florida Statutes, says they include “the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies,” and to perform the many mental and physical acts of daily life. Officers try to show impairment through driving pattern, speech, balance, and field sobriety exercises, and our firm compares each claim in the report against the body camera video.

The same statute sets presumptions that apply when the State has an alcohol test result:

A result between 0.05 and 0.08 does not end a case for either side. The State can still try to prove impairment with the officer’s observations, and The Brancato Law Firm can use the same number to show the driver was close to the line the presumption draws.

Can you get a DUI in Florida if you were not driving?

Yes. Florida’s DUI law covers anyone in “actual physical control” of a vehicle, so a person sitting behind the wheel of a parked car can be charged. The standard jury instruction defines it this way: the person must be physically in or on the vehicle and have the capability to operate it, whether or not the person is actually operating it at the time.

The Second District Court of Appeal, which hears appeals from Hillsborough, Pinellas, and Pasco County courts, applied that definition in State v. Fitzgerald, 63 So. 3d 75 (Fla. 2d DCA 2011). An officer in Largo, in Pinellas County, found a car stopped in an intersection around midnight with its lights on and the engine off. Ms. Fitzgerald was in the driver’s seat and readily produced the keys when asked. The trial court dismissed her felony DUI charge, but the appellate court reversed, holding that sitting in the driver’s seat with ready access to the keys made a prima facie showing that she could have started the car and driven away. The court explained that capability means “practical ability.”

The lesson from Fitzgerald is that losing a motion to dismiss does not end an actual physical control defense. That ruling only meant the case could go forward; the jury still decides whether the State proved control beyond a reasonable doubt. Our attorneys build that defense from the details: where the keys were, whether the engine or lights were on, whether the car could run, and who else was present.

Can you get a DUI for drugs or medication in Florida?

Yes. The impairment theory in section 316.193 covers any substance controlled under chapter 893, which includes many prescription pain, anxiety, sleep, and ADHD medications, along with illegal drugs. Florida has no per se limit for drugs the way it does for alcohol, so the State must prove the drug actually impaired the driver’s normal faculties. Our guides on DUI for prescription drugs in Florida and marijuana DUI in Florida explain how those cases are proved and defended.

Is DUI a misdemeanor or a felony in Florida?

Most DUIs are misdemeanors, but four situations make DUI a felony under section 316.193. The table shows how the charge is classified; our separate guide to Florida DUI penalties covers fines, jail, license revocation, and ignition interlock terms in detail.

A blood- or breath-alcohol level of 0.15 or higher, or having a passenger under 18 in the vehicle, raises the fines and the maximum jail time even on a first offense. Our homicide defense attorneys handle DUI manslaughter cases.

How common are impaired-driving crashes in Florida?

Impaired driving played a role in 969 traffic deaths in Florida in 2023, or 28.71% of the 3,375 people killed on Florida roads that year, according to the Florida Department of Highway Safety and Motor Vehicles’ Impaired Driving Annual Report (January 2025). The same report counts 6,026 impaired-driving crashes statewide in 2023, about 1.5% of all crashes.

National research shows how often drugs and alcohol appear together in serious crashes. In a 2022 study for the National Highway Traffic Safety Administration, researchers tested 7,279 seriously or fatally injured road users at seven Level 1 trauma centers, including one in Jacksonville, and found that 55.8% tested positive for alcohol or at least one other drug, as reported in Alcohol and Drug Prevalence Among Seriously or Fatally Injured Road Users (DOT HS 813 400). A positive test shows a substance was present. It does not prove the person was impaired, and that gap is where many drug DUI defenses begin.

What happens to your license after a DUI arrest in Florida?

A DUI arrest starts an administrative license suspension that runs separately from the criminal case. The driver has 10 days from the notice of suspension to request a review hearing or apply for a restricted license. Our guide to what happens after a DUI arrest in Hillsborough County walks through the license deadline, booking, first appearance, and the court dates that follow.

Refusing a breath or urine test carries its own consequences. Under section 316.1939, Florida Statutes, as amended by Trenton’s Law effective October 1, 2025, a first refusal after a lawful DUI arrest is a second-degree misdemeanor, and a later refusal is a first-degree misdemeanor, in addition to the license suspension.

Where do Florida DUI cases break down?

DUI cases break down where the State’s evidence depends on a step the officer had to perform correctly. These are the five points our attorneys test first:

1. The stop. If the officer had no lawful reason to stop the car, a motion to suppress can remove everything that followed, including the test result.
2. Actual physical control. When the car was parked, we examine the keys, the engine, and whether the person could practically operate the vehicle.
3. Field sobriety exercises. Footwear, injuries, weight, road surface, and nerves all affect performance, and the video often shows a different picture than the report.
4. The breath or blood test. Florida’s approved breath instrument is the Intoxilyzer 8000, and its maintenance records and the operator’s procedure must meet the state’s rules.
5. The impairment evidence. Without a valid test, the State must prove impairment from observations alone, and we hold it to that burden.

In Hillsborough County, our attorneys also screen every first-time client for the State Attorney’s Reducing Impaired Driving Recidivism (RIDR) program, which can end an eligible misdemeanor DUI with a plea to reckless driving instead of a DUI conviction. We explain the program’s conditions before a client decides. Our Hillsborough County criminal defense page covers how cases move through the 13th Judicial Circuit, and our guide on how to fight a DUI charge in Hillsborough County goes deeper into each defense. For a full description of our DUI work, see our Tampa DUI lawyer page.

What results has our firm obtained in DUI cases?

Past results do not guarantee future outcomes.

Frequently asked questions about DUI in Florida

Can you get a DUI in Florida for sleeping in your car?

Yes, if you were in the driver’s seat with the practical ability to start and move the car. The Brancato Law Firm defends these cases by examining the key location, the engine, and the car’s condition, the same facts the court weighed in State v. Fitzgerald.

Can you be charged with DUI in Florida with a BAC under 0.08?

Yes. A result above 0.05 but below 0.08 creates no presumption either way under section 316.1934, so the State may still try to prove impairment from the officer’s observations. Our attorneys at The Brancato Law Firm use a low number to show the jury how thin that proof is.

Can DUI charges be dropped in Florida?

Yes. DUI charges can be dropped or reduced when the stop was unlawful, the test result is excluded, or the impairment evidence is weak, and many first-time cases in Hillsborough County resolve through the RIDR program. The Brancato Law Firm pursues dismissal first and negotiates reductions to reckless driving when the evidence supports it, as described on our DUI defense in Tampa page.

Is refusing a breath test a crime in Florida?

Yes, since October 1, 2025. A first refusal after a lawful DUI arrest and the required warnings is a second-degree misdemeanor under section 316.1939, and The Brancato Law Firm defends the refusal charge by testing whether the arrest was lawful and whether every warning was given.

Does a DUI arrest suspend my license before I am convicted?

Yes. The officer issues a notice of suspension at the arrest, and the suspension takes effect unless you act within 10 days. The Brancato Law Firm files the review request or the restricted-license application inside that window, as our guide on protecting your license after a DUI arrest explains.

Talk to our attorneys about a Florida DUI charge

Your license deadline started the day of the arrest, and the video and breath records our attorneys need are easiest to secure in the first days. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. You can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. For more about our defense strategies, visit our DUI defense page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

In a DUI trial, jurors can watch the roadside video for themselves, and what they see often carries more weight than the officer’s report. I taught at the police academy before I founded The Brancato Law Firm, P.A., a Tampa criminal defense firm, so I know how officers are trained to investigate and where shortcuts show up on video. I am a member of the National College for DUI Defense (NCDD) and the DUI Defense Lawyers Association (DDLA), and I have tried more than 150 jury trials to verdict in more than 25 years in Hillsborough County courtrooms. Our attorneys hold each DUI investigation to the procedures officers are taught, step by step, and use every gap to pursue suppression, dismissal, a reduction, or a not guilty verdict.

What are the defenses to a DUI charge in Florida?

The main defenses to a Florida DUI charge attack the four things the State needs: a lawful stop, probable cause to arrest, a reliable chemical test, and proof of impairment. Under section 316.193, Florida Statutes, the State must prove the driver’s normal faculties were impaired by alcohol or drugs, or that the driver’s blood or breath alcohol level was 0.08 or higher. Our attorneys review every stage in the same order the officer built the case, because a defect early in the case can remove everything that came after it. You can read more about how our firm handles these cases on our Tampa DUI defense page.

Was the traffic stop legal?

A DUI case can be dismissed if the officer had no lawful reason to stop the car. The Fourth Amendment requires either a traffic violation or a reasonable suspicion, based on specific facts, that the driver was impaired. Florida courts allow an officer to stop a driver whose weaving within a lane suggests impairment, so the real question in most cases is what the driving looked like.

Our attorneys compare the patrol car video, minute by minute, with the reason written in the arrest report. When the video shows a single touch of a lane line, a lawful turn, or driving that never matches the report, we file a motion to suppress. If the judge grants it, the officer’s observations, the test results and the driver’s statements that followed the stop are excluded, and the State usually cannot proceed.

Did the officer have probable cause to arrest you for DUI?

An officer needs probable cause, meaning facts that would lead a reasonable officer to believe the driver was impaired, before making a DUI arrest. Most officers build that probable cause on three standardized field sobriety exercises: the horizontal gaze nystagmus eye test, the walk-and-turn, and the one-leg stand.

The research behind those exercises is narrower than most jurors assume. The National Highway Traffic Safety Administration’s main validation study, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent (1998), tested 297 drivers stopped by seven officers from a single San Diego police alcohol enforcement unit. It reported that the officers’ decisions about whether a driver was above or below 0.08 were accurate in 91 percent of cases, using the scoring procedures they had been trained on. A 1994 study in the peer-reviewed journal Perceptual and Motor Skills showed officers videotapes of 21 sober people. The officers rated significantly more of those sober people as impaired when they watched them perform field sobriety tests than when they watched them do ordinary tasks such as walking normally or reciting an address.

Our attorneys hold officers to their own standard. NHTSA’s accuracy figures assume the exercises were given and scored exactly as officers are trained, so every departure on the video weakens the probable cause. A probable cause challenge that fails at a suppression hearing can still succeed in front of a jury, because the same flaws go to whether the driver was actually impaired. Our post on how to challenge field sobriety tests in Tampa covers the exercises one by one.

Can a breath test be thrown out in Florida?

Yes. A Florida breath result is valid only if the test was performed substantially according to methods approved by the Florida Department of Law Enforcement (FDLE), by an operator with a valid FDLE permit, under section 316.1934, Florida Statutes. FDLE’s rules are in chapter 11D-8 of the Florida Administrative Code. They approve two instruments, the Intoxilyzer 8000 and the newer Intoxilyzer 9000, and they require, among other things:

• an agency inspection of each instrument at least once every calendar month, under rule 11D-8.006;
• at least 20 minutes before the test in which the officer reasonably ensures the driver has not taken anything by mouth or regurgitated, under rule 11D-8.007;
• at least two breath samples taken within 15 minutes of each other, with results within 0.020 of each other, and a third sample when the first two are farther apart, under rule 11D-8.002.

The Second District Court of Appeal, whose decisions bind the trial courts in Hillsborough, Pinellas and Pasco Counties, applied these rules in State v. Kilburn, No. 2D2024-0649 (Fla. 2d DCA Aug. 15, 2025). An FDLE inspector had replaced a leaking breath tube in a Sarasota County Intoxilyzer 8000 that was used in three DUI cases. The court agreed with the trial judge that replacing the tube was a repair, not maintenance, and that FDLE was not then an authorized repair facility. The breath tests from that machine were therefore not in substantial compliance with FDLE’s rules, and the State could not rely on the breath test affidavit and the legal presumptions in section 316.1934 to prove the results. Our firm wrote about that ruling in Intoxilyzer Not Properly Maintained: Florida Court Throws Out Breath Test Results.

Effective July 1, 2026, FDLE amended rule 11D-8.002 to list the Department itself as an authorized repair facility. The repair-facility argument remains available for breath tests taken before that date. For every breath case, old or new, our attorneys obtain the instrument’s inspection, maintenance and repair records, because who worked on the machine, and when, can decide whether the result comes in.

Can police take your blood after a DUI arrest in Florida?

Police generally need a warrant, valid consent, or a true emergency to draw blood in a DUI case. In Missouri v. McNeely, 569 U.S. 141 (2013), the U.S. Supreme Court held that the natural loss of alcohol from the bloodstream does not, by itself, create an emergency that excuses a warrant. In Birchfield v. North Dakota, 579 U.S. 438 (2016), the Court held that police may require a breath test without a warrant after a lawful DUI arrest, but a blood test is more intrusive because it pierces the skin, and a state may not make it a crime to refuse one.

Florida’s implied consent law covers blood in one narrow situation: the driver appears for treatment at a hospital, clinic or ambulance, and a breath or urine test is impractical or impossible, under section 316.1932(1)(c), Florida Statutes. FDLE’s rule 11D-8.012 then requires an alcohol-free antiseptic, a glass tube with a preservative and an anticoagulant, proper labeling and refrigeration, and delivery for analysis within 30 days. A missing step can keep the result out. Our post on whether police can take your blood without a warrant in Florida covers the warrant rules in detail.

When blood was drawn after a crash, charges are often not filed until the lab results come back. That gap is the time for pre-file advocacy, when our attorneys can present facts to the prosecutor before the charging decision is made.

What if your blood alcohol was still rising when you were driving?

A breath or blood test measures alcohol at the time of the test, which can be an hour or more after the driving ended. Alcohol keeps absorbing into the blood for a period after the last drink, so a driver’s level can be lower behind the wheel than at the station. In Miller v. State, 597 So. 2d 767 (Fla. 1991), the Florida Supreme Court held that a test taken within a reasonable time after the stop is admissible even if the State cannot relate the number back to the time of driving. The court treated that gap as a question of weight for the jury, which makes the drinking timeline a trial issue.

Our attorneys build that timeline from receipts, bar tabs, meals, witness statements and the time of the stop. We then work with forensic toxicologists through our forensic science defense practice. Our post on retrograde extrapolation and rising blood alcohol describes a case where that testimony mattered.

What does the video in a DUI case show?

In many DUI cases, the video is the strongest defense evidence. Depending on the agency, a patrol car camera records the driving and the stop, a body camera records the roadside exercises and the arrest, and the breath testing room may record the 20-minute observation period. Our attorneys request every recording and compare it with the report line by line: slurred speech that sounds clear, swaying that never appears, instructions that were rushed or incomplete, and observation periods interrupted by phone calls or paperwork.

In one of our firm’s published results, a jury found a client not guilty of DUI (refusal) and resisting an officer without violence after the defense relied on scene video showing the client was not impaired. Agencies do not keep every recording indefinitely, so our attorneys request them early.

How are drug DUI cases defended in Florida?

Florida has no legal limit for marijuana or other drugs, so in a drug DUI case the State must prove that a controlled or chemical substance impaired the driver’s normal faculties under section 316.193. A positive blood or urine test shows that a substance was present. It does not, by itself, show that the substance impaired the driver at the time of driving.

Many drug DUI cases rest on a drug recognition expert (DRE), an officer trained in a 12-step evaluation that ends with an opinion about which drug category caused the impairment. Our attorneys challenge the DRE’s training records, each step of the protocol, and whether the lab results match the drug category the officer named. Our posts on what a drug recognition expert is in Florida and marijuana DUI charges in Florida go deeper.

Can you beat a DUI refusal charge in Florida?

Yes, because a refusal charge has its own elements, and each one can fail. Since October 1, 2025, a first refusal to take a lawful breath or urine test is a second-degree misdemeanor, and a later refusal is a first-degree misdemeanor, under section 316.1939, Florida Statutes. The State must prove the officer had probable cause, the driver was lawfully arrested for DUI, the driver was told the specific consequences of refusing, and the driver then refused. The crime covers breath and urine tests only, and Birchfield v. North Dakota, 579 U.S. 438 (2016) bars criminal punishment for refusing a blood test.

Refusals are common. In 2022, Florida officers issued 44,001 DUI citations and recorded 14,941 breath test refusals, a refusal rate of about 34 percent, according to Department of Highway Safety and Motor Vehicles figures in a January 2024 Florida Senate Criminal Justice Committee bill analysis. The same analysis cites a 2016 study that put the national refusal rate at 24 percent.

A refusal is also admissible in the DUI case itself, but the law limits how the State can use it. In Osorio v. State, 428 So. 3d 220 (Fla. 3d DCA 2026), the prosecutor told the jury that a sober driver would have blown and “proved innocence beyond a reasonable doubt.” The Third District reversed the DUI conviction because that argument shifted the burden of proof to the defendant. Our attorneys object when the State’s argument crosses that line, and we preserve the issue for appeal. A refusal also brings an administrative license suspension of one year for a first refusal, or 18 months if the license was previously suspended for refusing, under section 322.2615, Florida Statutes.

Can a DUI be reduced to reckless driving in Hillsborough County?

Yes, and when the evidence cannot be suppressed, a reduction to reckless driving is often the realistic goal for a first-time driver. A DUI conviction always counts as a conviction: section 316.656, Florida Statutes bars a Florida court from withholding adjudication for DUI. Reckless driving under section 316.192, Florida Statutes carries up to 90 days in jail and a $25 to $500 fine for a first conviction, and the court can withhold adjudication. When the court believes alcohol or drugs contributed, it must order DUI school and an evaluation, which is why the result is sometimes called a “wet reckless.”

Two limits shape the negotiation. Section 316.656 also bars a judge from accepting a plea to a lesser offense when a breath or blood test shows 0.15 or higher, so in high-reading cases the defense work on the test result itself carries more weight. And in Hillsborough County, the State Attorney’s Office runs its own first-offender track, the Reducing Impaired Driving Recidivism (RIDR) program.

According to the State Attorney’s program sheet, RIDR is limited to first-time misdemeanor DUIs with no minor in the car, no crash, and no reading of 0.20 or higher. Before a disposition date about 60 days after arraignment, the driver completes DUI school, a MADD victim impact panel, community service, and an ignition interlock, alcohol monitor or drug patch. The State then offers a plea to reckless driving with a withhold of adjudication and 12 months of probation. The sheet says one goal is to remove the incentive to refuse a breath test, and it assigns heavier conditions to the level that covers cases with no breath sample: 75 community service hours and six months of monitoring, instead of 50 hours and three months.

Missing RIDR does not end the negotiation. In a published July 2026 result, a client charged with DUI, leaving the scene and refusal did not qualify for RIDR because of the crash. Our firm prepared a mitigation report and treatment plan, and the prosecutor agreed to reduce the case to reckless driving with adjudication withheld.

What are the penalties for a first, second, and third DUI in Florida?

A first DUI in Florida carries up to six months in jail, a $500 to $1,000 fine and a license revocation of 180 days to one year, and the penalties rise with each prior conviction and with a reading of 0.15 or higher. The table below summarizes section 316.193, section 322.28 and section 775.082.

Our attorneys start every case by identifying which of these penalties your record and test result actually put in play. Our post on Florida DUI penalties in Tampa and Hillsborough County covers fourth offenses and other consequences.

Which criminal defense lawyers in Tampa specialize in DUI cases?

Look for a criminal defense lawyer with DUI-specific training, real trial experience, and daily familiarity with the Hillsborough County courts and the State Attorney’s programs. At The Brancato Law Firm, our practice is devoted entirely to criminal defense, from misdemeanors to capital cases, and DUI defense is a core part of it. Our founder is an NCDD and DDLA member and a former police academy instructor, and he served as Chief Operations Officer of the Hillsborough County Public Defender’s Office, overseeing a staff of over 100 attorneys. He is rated AV Preeminent, selected to Super Lawyers, named to the National Trial Lawyers Top 100, and wrote “How to Choose a Major Crimes Attorney – or Any Criminal Defense Attorney for That Matter.”

Our office at 620 E. Twiggs Street is two blocks from the Hillsborough County Courthouse, and we also defend DUI cases in Pinellas County and Pasco County. Clients get updates through a client portal, and we return calls within 24 hours. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French.

What should you do in the first 10 days after a DUI arrest in Hillsborough County?

The most urgent step is to challenge the administrative license suspension, because section 322.2615 gives you only 10 days from the notice of suspension to request review. In those 10 days:

1. Talk with a DUI defense lawyer before the review deadline passes.
2. Do not discuss the arrest with anyone except your lawyer, including on social media.
3. Write down what you ate and drank, and when, while you still remember it.
4. Keep receipts and bar tabs, and note the names of anyone who was with you and any businesses near the stop that may have cameras.

Our post on what happens after a DUI arrest in Hillsborough County walks through the full court timeline. Our attorneys can start on the license review and the evidence requests the day you call.

DUI case results from our firm

More results are on our case results page. Past results do not guarantee future outcomes.

Frequently asked questions about fighting a DUI in Hillsborough County

Can a DUI be dropped or reduced in Florida?

Yes, a DUI charge can be dropped when key evidence is suppressed or the State cannot prove impairment, and it can be reduced to reckless driving through negotiation or Hillsborough County’s RIDR program. Our attorneys at The Brancato Law Firm have published results in which DUI charges were reduced to reckless driving, including one in which the client did not qualify for RIDR. A reduction is limited by section 316.656, which bars a plea to a lesser offense when a breath or blood test shows 0.15 or higher.

Do I need a DUI specialist in Tampa?

You need a lawyer with DUI-specific training who tries cases, whatever title the lawyer uses. At The Brancato Law Firm, our founder is a member of the National College for DUI Defense and the DUI Defense Lawyers Association, and our practice is devoted entirely to criminal defense, from misdemeanors to capital cases. That means the team negotiating your DUI is also prepared to try it. See how we approach these cases on our DUI defense team in Tampa page.

How do I choose a DUI defense attorney in Tampa, Florida?

Ask how many DUI cases the lawyer has taken to trial, what DUI-specific training the lawyer has, and who will actually appear in court with you. The Brancato Law Firm answers those questions in a free consultation, and our founder has tried more than 150 jury trials to verdict. Ask, too, how the firm communicates: our clients get updates through a client portal, and we return calls within 24 hours. Our published case results show how DUI cases have actually ended.

I was arrested for DUI in Hillsborough County and need a lawyer. What should I do first?

Call a DUI defense lawyer before the 10-day deadline to challenge your license suspension passes, and do not discuss the arrest with anyone else. The Brancato Law Firm’s office is two blocks from the Hillsborough County Courthouse, and you can call us at any hour at (813) 727-7159. Our post on what happens after a DUI arrest in Hillsborough County explains each court date that follows.

How much does it cost to fight a DUI in Tampa?

The cost of fighting a DUI depends on the evidence, how much investigation the case needs, and whether it goes to trial. The Brancato Law Firm quotes a flat fee that covers the whole case, including trial, based on the facts and complexity of your case, and our fees are neither the most nor the least expensive in Tampa. We ask for at least half up front, with a payment plan for the balance while the case is pending, and consultations are free. A flat fee that includes trial avoids a separate trial fee, which can create a financial incentive to settle before trial preparation; our post on what a criminal defense attorney costs in Tampa explains more.

Can the prosecutor use my breath test refusal against me at trial?

Yes, a refusal is admissible in Florida and the prosecutor may argue it shows consciousness of guilt, but the prosecutor may not argue that you had to prove your innocence by blowing. Our attorneys at The Brancato Law Firm object to that argument and preserve it for appeal. In Osorio v. State, 428 So. 3d 220 (Fla. 3d DCA 2026), a DUI conviction was reversed for exactly that kind of argument.

Talk with our DUI defense team about your case

Most DUI defenses depend on evidence that can disappear and deadlines that run out within days of the arrest: the 10-day window to challenge your license, and recordings that agencies do not keep indefinitely. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, starts by requesting that evidence and reviewing the stop, the arrest and the test. Call (813) 727-7159 for a free consultation, and call us at any hour. For more about our defense strategies, visit our Tampa DUI Lawyer page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

Most DUI arrests in Tampa are decided by what happened in the five minutes after the driver stepped out of the car. As a former police academy instructor, I know how officers are trained to give and score these exercises, and how often the roadside version falls short of the training. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a member of the National College for DUI Defense. Our attorneys review every second of roadside video in a DUI case, because that is where the State’s case is usually weakest.

What are the three standardized field sobriety tests?

The three standardized field sobriety tests are horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg stand. They were developed for the National Highway Traffic Safety Administration (NHTSA), and NHTSA’s training manual describes them as the only field sobriety tests for which validated clues have been identified. Anything else an officer asks a driver to do, such as reciting the alphabet or touching a finger to the nose, has no validated scoring at all.

The clue lists and arrest criteria above come from the NHTSA-funded A Florida Validation Study of the Standardized Field Sobriety Test (S.F.S.T.) Battery (Burns and Dioquino, 1997), which was conducted with the Pinellas County Sheriff’s Office.

How accurate are field sobriety tests?

Field sobriety tests are less accurate than most jurors assume, especially near the legal limit. NHTSA’s main validation study, Stuster and Burns, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent (1998), tested 297 drivers with San Diego police. At the 0.08 level, officers using all three exercises were correct 91% of the time. That number drops in the range where most contested cases sit. For drivers between 0.04 and 0.08, the officers’ decisions to release were correct only 52% of the time.

Independent researchers have questioned even those figures. A 2005 article in the Journal of Forensic Sciences, Statistical evaluation of standardized field sobriety tests, re-analyzed the San Diego data and concluded that accuracy depends heavily on blood alcohol level and is “much lower than” the 91% originally reported. The tests appear best at identifying drivers who are well above 0.08, not drivers near the line.

Real roadsides make the problem worse. The validation studies were run under controlled conditions. A shoulder on Interstate 4 at 1 a.m., with traffic passing, headlights flashing, uneven pavement, and a nervous driver in dress shoes, is not a controlled condition. Injuries, inner-ear problems, age, weight, and footwear all affect balance.

Do I have to do field sobriety tests in Florida?

No statute requires a driver to perform field sobriety exercises. Florida’s implied consent law, section 316.1932, Florida Statutes, covers breath, blood, and urine tests after a lawful arrest. The roadside exercises come before arrest and are outside that statute.

Refusing has consequences, though. In State v. Taylor, 648 So. 2d 701 (Fla. 1995), the Florida Supreme Court held that a driver’s refusal to perform field sobriety tests is admissible at trial as evidence of consciousness of guilt, as long as the officer had reasonable suspicion of DUI and warned the driver that refusing could have adverse consequences. In September 2026 the Fourth District applied the same rule in Paul v. State, No. 4D2025-0899 (Fla. 4th DCA Sept. 2, 2026), holding that a prosecutor may argue that refusing the roadside exercises and a breath test shows consciousness of guilt.

The Second District, which hears Hillsborough County appeals, has also said consent is not the issue. In State v. Liefert, 247 So. 2d 18 (Fla. 2d DCA 1971), the court held that an officer who saw weaving and smelled alcohol could require the driver to take part in physical sobriety tests, and that consent was immaterial. The real question in most cases is whether the officer had the legal basis to ask.

When can an officer in Hillsborough County ask for field sobriety tests?

An officer needs reasonable suspicion that the driver is impaired before requesting field sobriety tests. The Second District said so directly in State v. Ameqrane, 39 So. 3d 339 (Fla. 2d DCA 2010), a Hillsborough County case: “To request that a driver submit to field sobriety tests, a police officer must have reasonable suspicion that the individual is driving under the influence.” In that case, speeding at 4 a.m., the odor of alcohol, and glassy, bloodshot eyes were enough, and the court reversed a suppression order.

Ameqrane shows how this issue is argued. A stop for a burned-out tag light, with no bad driving and only an odor of alcohol, is a very different case from weaving across three lanes. When the officer moved to the roadside exercises without reasonable suspicion, our attorneys file a motion to suppress everything that followed: the exercises, the arrest, and the breath test. The Fifth District applied the same rule in State v. Johnson, 361 So. 3d 911 (Fla. 5th DCA 2023), holding that a driver can be required to perform the exercises once reasonable suspicion exists. Learn more about suppression on our Tampa DUI lawyer page.

How do Florida courts limit field sobriety evidence at trial?

Florida courts limit how the State describes the exercises. In State v. Meador, 674 So. 2d 826 (Fla. 4th DCA 1996), the court held that the walk-and-turn, one-leg stand, and similar exercises are admissible only as an officer’s lay observations of the driver. The court warned that calling them a “test,” or saying the driver “passed,” “failed,” or scored “points,” gives “these layperson observations an aura of scientific validity.”

Meador treated HGN differently. Because the eye test depends on scientific principles, the State must lay a scientific foundation before the jury hears it. In practice that means a properly qualified witness and a properly administered test. Roadside HGN tests are sometimes given with the driver facing passing headlights or flashing emergency lights, which can affect the result.

How do our attorneys challenge field sobriety evidence?

Our attorneys challenge field sobriety evidence by comparing the video, frame by frame, with the officer’s report and with NHTSA’s own instructions. The process usually looks like this:

1. Get the body camera and dash camera video. We watch for whether the officer gave complete instructions, demonstrated correctly, and stopped the driver from starting early, then count the clues ourselves.
2. Check the surface and conditions. Gravel, slopes, wet grass, wind, and passing traffic all affect balance.
3. Look for medical and physical explanations. Knee and back injuries, inner-ear conditions, weight, age, fatigue, and footwear affect balance.
4. Compare the report with the video. Reports are often written hours later. When a report lists six walk-and-turn clues and the video shows two, the officer’s credibility becomes the issue.
5. Hold the State to Meador at trial. We move to keep the words “test,” “pass,” “fail,” and “points” out of the officer’s testimony, and we object to HGN without a proper foundation.

This work produces results. In one of our DUI trials, the scene video showed no impairment and no resistance, and the jury found our client not guilty of both DUI and resisting an officer. Other DUIs have been reduced to reckless driving because the roadside evidence would not hold up. These and other outcomes are on our case results page. Past results do not guarantee future outcomes.

How many DUI cases does Hillsborough County handle?

Hillsborough County handles thousands of DUI cases a year. From October 1, 2024 through September 30, 2025, the MADD court monitoring program tracked more than 4,100 DUI cases in Hillsborough County, according to the Florida Department of Transportation’s FY2025 Highway Safety Annual Report. With that volume, the roadside portion of many arrests is done quickly, and the video often shows shortcuts the report leaves out.

That volume also explains why prosecutors negotiate. When our attorneys show the assigned prosecutor that the roadside exercises were given wrong, the State has to decide whether its remaining evidence can carry a trial. For what comes after the arrest, read What Happens After a DUI Arrest in Hillsborough County and How to Fight a DUI Charge in Hillsborough County.

What should you do if you were arrested after field sobriety tests?

Move quickly on two fronts. The criminal case and the license suspension run on separate tracks, and the license challenge has a 10-day deadline from the arrest. Our post on how to protect your driver’s license after a DUI arrest explains that hearing.

• Write down everything you remember about the stop and the exercises, including the surface, the lighting, what you were wearing, and any injuries.
• List any medical conditions that affect balance or eye movement, with the names of your doctors.
• Do not discuss the arrest on social media or by text.
• Keep your paperwork, including the citation and any property receipt.
• Talk to a DUI defense lawyer before your arraignment, so the video can be requested and reviewed early.

Frequently asked questions about field sobriety tests in Florida

Can I refuse field sobriety tests in Florida?

Yes. Florida does not require a driver to perform roadside sobriety exercises, but under State v. Taylor, 648 So. 2d 701 (Fla. 1995), the refusal can be used at trial if the officer warned you of the consequences. The Brancato Law Firm reviews the video of what the officer actually said, because a missing warning or a missing basis for the request can keep a refusal out of evidence.

Are field sobriety tests scientific evidence in Florida?

Only the HGN eye test is treated as scientific in Florida, under State v. Meador, 674 So. 2d 826 (Fla. 4th DCA 1996); the balance exercises are lay observations. Our attorneys at The Brancato Law Firm use that ruling to keep officers from telling jurors that a driver “failed.”

Can a DUI be dismissed because of how the field sobriety tests were done?

Yes, it can contribute to a dismissal or reduction when the exercises were requested without reasonable suspicion or were given and scored wrong. The Brancato Law Firm has had DUIs reduced to reckless driving and has won a not guilty verdict where the scene video showed no impairment. Read more on our Tampa DUI defense page.

Can a medical condition make me fail a field sobriety test?

Yes. Back, knee, and hip injuries, inner-ear disorders, some neurological conditions, and some medications affect balance and eye movement. Our attorneys at The Brancato Law Firm gather medical records early and, when needed, consult experts who can explain to a jury why a sober person struggled.

Do field sobriety tests matter if I took a breath test?

Yes. They often matter more than people think, because the officer’s roadside observations are the State’s evidence of impairment when the breath result is close to 0.08 or is challenged. The Brancato Law Firm attacks both, and our post on challenging Intoxilyzer maintenance explains the breath side.

What does the walk-and-turn test measure?

It is designed to measure divided attention, meaning the ability to listen to instructions, balance, and walk at the same time. The Brancato Law Firm counts the clues ourselves from the video, because officers often record clues that the footage does not show.

Call a Tampa DUI defense attorney before your arraignment

The first two weeks after a DUI arrest decide what evidence still exists and whether your license stays valid. Call The Brancato Law Firm, P.A. at (813) 727-7159. The firm was founded by Tampa Criminal Defense Attorney Rocky Brancato, and our attorneys will request the roadside video, review it against NHTSA’s own standards, and file the license challenge within the 10-day deadline. You can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. We also offer criminal defense in Spanish and Haitian Creole.

For more about our defense strategies, visit our Tampa DUI Defense page.

The Brancato Law Firm, P.A.

620 E. Twiggs Street, Suite 205, Tampa, FL 33602

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

Each case is unique, and past results do not guarantee future outcomes. This article is general information, not legal advice.