DUI – Is it legal to drink then drive in Florida?

It’s safe to say that most people know it is absolutely illegal to drive if you are intoxicated to the point of your normal faculties being impaired. But, is it legal to drink then drive in Florida, yes! Many people don’t realize that this happens every single day and it happens legally. You can have a beer and drive home from the bar, that is why the bar has a parking lot!

Where most DUIs come from, is from that innocent person, drinking one more beer than usual, feeling fine, not realizing that last beer brought you over that .08 blood alcohol limit. Many people don’t realize how little it may take to reach that .08 limit and that is how we get a DUI against someone who would never drink and drive while impaired, at least not knowingly. So, you have that one more drink and on your drive home, you take a second after the light turns green before you accelerate, you go 5 miles under speed limit, or you swerve once within your lane, and now you have been pulled over. In your mind, you know your not impaired so you answer the officer’s question honestly, “Yes, I’ve had a few drinks tonight.” Now you will be asked to perform those made to fail field sobriety tests… Lets back this up and talk about what to do instead.

DUI - Driving under the influence Defense

Don’t Risk it, Don’t Drink and Drive

First and foremost, take an uber, have a designated driver, don’t risk driving after drinking. But, if you do drive and you end up in the situation I just described…what now?

You found yourself pulled over after a few drinks…now what

  • Be respectful, always! If you end up in a trial, a jury will see your behavior.
  • Stop talking! Do not admit anything, ever! You are not required to incriminate yourself by telling the officer you had a few drinks, keep that to yourself.
  • Respectfully provide your documents and wait for further instructions.

DUI Field Sobriety Test

A law enforcement officer may request that you take field sobriety tests if they have reasonable suspicion that you are driving under the influence.  But, there is no law or Florida State Statute that requires you to submit to field sobriety tests.

These tests are setup to fail, they are based on the officers observations, opinions, and prejudices. You do not have to submit to the test. If an officer finds probable cause to arrest you otherwise, then he may ask you to take a breathalyzer, but that breathalyzer should be incidental to your arrest, not the reason for your arrest. We will get more into the breathalyzer in a minute, lets talk about these fields sobriety test first.

First, I want to be clear. Thought you have no legal obligation to take the fields sobriety tests, if you do not submit to the field sobriety tests, you will likely be arrested anyways, but at least it gives the State Attorney one less thing to use when trying to get you convicted of driving under the influence.

There are many types of test, here are some of the more common and more “standardized” tests:

Horizontal Gaze Nystagmus Test

DUI - HGN field sobriety test

In Florida, this test can only be used at a trial if a Drug Recognition Expert is the one administering the test. Most officers, at least in my area, do not have this title. Why must they be a “DRE”? Because it takes a lot of training to know if someone’s eyes have a nystagmus prior to 45 degrees for example…

The officer will hold a pen or an object 12-15 inches away from your face and ask you to follow the object with your eyes. The officer is looking for:

  • Jerking or boucing eyes
  • Lack of smooth pursuit
  • Distinct nystagmus at maximum deviation
  • Onset of nystagmus prior to 45 degrees

If the test is done properly, the research shows that anyone exhibit nystagmus will have a blood alcohol level of at least .10.

DUI - walk and turn field sobriety test

Walk and Turn Test

This is one of many test that looks for your ability to do two or more things at the same time. For this test, you will be instructed to stand with your right front in front of your left, on a line, with your hands to your side, while you watch the officer demonstrate the next part of the test. This instructional position is part of the test! They are watching to see if you can hold that position for the entire instructional phase.

You will be instructed to take nine heel-to-toe steps in a straight line, then turn on one foot and take nine step back in the same manner. What is the officer looking for here?

  • Ability to keep your balance and remain still during the instructions
  • Waiting for the instructions to finish proir to starting
  • Stopping while walking to regain your balance
  • Heel to toe seperation
  • Stepping off the line
  • Using arms to balance
  • Making the turn improperly
  • Taking the correct number of steps

If the test is done properly, the research shows that anyone showing two or more of the above signs will have a blood alcohol level of at least .08.

One Leg Stand

DUI - one-leg stand field sobriety test

This is another one that will test your ability to do two or more tings at the same time.

You will be instructed to hold one foot off the ground approximately six inches and count, one-thousand-one, one-thousand-two, etc. (Don’t be like one of my former clients who counted one-banana, two-banana!) The officer will set a 30 second timer for this test and see how long you can hold your balance. Timing is important because most individuals with a blood alcohol level over .08 cannot do this test for more than 20-25 seconds.

The officer is watching out for the following:

  • Using your arms to balance
  • Hopping
  • Swaying
  • Putting your foot down

If the test is done properly, the research shows that anyone showing two or more of the above signs will have a blood alcohol level of at least .08.

I have seen many other test done, but these are the “standardized test.”


DUI - Breathalyzer

If the officer believes you failed to test, he may find probable cause to arrest you for violation of Florida Statute 316.193, Driving Under the Influence, and the officer will now request your submit to a chemical test to determine the level of alcohol in your blood. Some officers have mobile breathalyzers, most in this area take you to the police station to administer a breathalyzer/intoxilyzer.

The officer will first observe you for 20-minutes then administer the test. As a Florida driver, there is an implied consent to take the breathalyzer test and if you refuse, you will lose your license automatically for a period of twelve-months (if it is your first refusal).

DUI Defense

DUI defense

So, you now have a charge for DUI, what next? Get an attorney ASAP! You have ten short days to challenge the automatic suspension of your license after an arrest. Though many of these hearings are lost, they play a crucial role in your defense as it can give great insight into how the officer will testify at a trial.

Once that hearing is held, it is my job to pick apart the arrest affidavit and DUI packet for insufficiencies and watch any video to help me find any potential reason to file a Motion to Suppress and get any amount of evidence thrown out possible.

In the meantime, I start working with the State Attorney to get your the best possible plea offer I can get you. Once the best offer I feel I can get has been made, I will then present the offer to you and all of your choices and their risks moving forward. If you choose to push to trial, I will aggressively fight to get you a not guilty. If you think the plea offer is your best choice, we will tell the judge and this case will be behind you.


DUI defense

Whatever you do, don’t speak to the police, don’t give a written statement, and contact an attorney ASAP!

Contact us today for help with your criminal defense. You can also book an appointment online!

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