A Risk Worth Taking:

The Benefits of Taking a DUI Case to Trial

by Summer Goldman Vecchioli, Esq. and Jowita L. Wysocka, Esq.


Back in the old days, a driving under the influence (DUI) charge was of little significance.  The defendant typically pled guilty, received a slap on the wrist from the judge, and drove home.  Times have changed, and in Florida, the revised recently revised traffic laws impose substantially stricter sanctions.  These include fines, jail, community service, mandatory DUI education classes, interlock devices, and–perhaps worst of all–license revocation.  The fines, sentences, and revocation periods increase significantly with each subsequent DUI offense.  For example, under current Florida law, a third DUI within ten years is now a felony, whereas it was a misdemeanor just five years ago.   Such a felony conviction could lead to a prison sentence of up to 5 years and a license revocation of a minimum of 10 years. 

In light of such dramatic changes in the law, the stakes are higher than ever before.  An individual charged with DUI is therefore well-advised to hire an attorney who is fully equipped and prepared to try such a case.  This is significant for two reasons:  First, prosecutors are more likely to reduce the charges when a defendant’s lawyer or firm has a reputation of going to trial.   Second, even if the case proceeds to trial, a good trial attorney will use the various available mitigating factors and evidentiary defenses to raise a reasonable doubt, including the accuracy of test results as well as testimony of the officer who made the arrest. 

I.  Trial Considerations

A.  The Defense Attorney’s Reputation

A DUI defendant’s success depends largely on his or her attorney’s reputation of taking cases to trial.  If a firm is not recognized as one that is prepared to take the case all the way to trial, it can significantly affect the prosecutor’s decision to amend or dismiss the charges.  Unfortunately, many firms are not equipped to handle trials because they lack manpower and other resources, and the clients’ interests may not be best-served in such situations.  In fact, in many DUI cases, going to trial may be the only way to avoid the harsh penalties imposed by the new amendments.  At The Fleming Law Group, we encourage our clients to proceed to trial, if such an approach is warranted—and the state attorney’s office knows it.  By aggressively defending our DUI cases, we are more capable of representing our clients effectively and achieving more favorable results.

B.  The Jury Factor

Another important factor to consider is the jury.  In addition to having confidence in his or her attorney, the DUI defendant should trust the jury to base its decision on the totality of the facts and circumstances.  Attorneys (including prosecutors) and judges are trained to ignore certain elements of a case, concentrating primarily on the most relevant, material facts and procedural issues.  Members of the jury, on the other hand, are more likely to see the big picture.  Therefore, a jury verdict following a trial may yield more favorable results than a conviction based on an uncontested charge. 

II.  DUI Defenses

According to FS 316.193, in order to convict a defendant of a DUI, the state has the burden of proving beyond a reasonable doubt that alcohol or a controlled substance caused the impairment of the defendant’s normal faculties or that the defendant had an unlawful blood alcohol or breath alcohol level of .08% or higher.  The state typically sets out to prove these elements through a breath or blood test, along with the arresting officer’s testimony regarding the defendant’s driving pattern, physical appearance, and field sobriety exercises.  As discussed below, there are several defenses and mitigating factors to such evidence.

A.  Chemical Tests

Despite popular belief, a breath or blood test result of .08% or higher does not warrant an automatic conviction and is therefore worth challenging in court.  Such chemical tests are rarely 100% accurate.  For example, the results of a breath test can vary based on calibration, maintenance, and timing.  Thus, even if a person blows at a level of .08% or more, the state must prove that was the level at the time the person was actually driving.  Since a breath test is typically administered an hour after the person was in the vehicle, it is seldom a reliable indicator of impairment.

Similarly, a blood test may indicate disparate and inaccurate blood alcohol levels because it could have contained insufficient preservatives, causing the blood to ferment and produce its own alcohol.  If the defense can cast a reasonable doubt on the accuracy of a chemical test, usually by hiring an expert or cross-examining the state’s expert, it may merit a defense verdict.

Perhaps the least credible form of evidence in a DUI case is the result of a urine test.  Even though such a test may indicate the presence of alcohol or a controlled substance in the defendant’s system, it is virtually impossible for any expert to quantify it.  Moreover, there is no way for a toxicologist to conclude with certainty from a urine test that the defendant was actually under the influence.  Accordingly, such tests have little to no value in a DUI trial. 

B.  Officer’s Testimony

The outcome of a majority of DUI trials rests heavily on the credibility of the law enforcement officer.  The impeachment of the arresting officer at trial substantially enhances the defendant’s likelihood of success, including a “not guilty” finding.  Cross- examination of the arresting officer offers the defense an invaluable opportunity to refute the state’s allegations against the defendant; it’s also a good opportunity to highlight the fact that the officer is human and therefore fallible.  His or her perception of the defendant’s appearance of impairment is highly subjective and may be inaccurate.  Also, the law enforcement officers range in the level of experience; thus an officer who is new to the system may not be able to assess someone’s impairment as properly as a more seasoned officer.


There are numerous compelling reasons to try a DUI case rather than succumb to an automatic conviction.  The consequences of a conviction on one’s permanent record are more stringent and serious than ever before, and taking a case to trial may be the only way to mitigate them.  In light of these considerations, proceeding to trial may be well worth the risk. 

FS 316.193(2)(b) (2002).

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