In a helpful decision for drivers across the Tampa Bay area and throughout Florida, the Fourth District Court of Appeal in State v. Marlin has struck down the State’s reliance on warrantless, coerced blood extractions following serious DUI crashes. For years, law enforcement officers and prosecutors cited Florida Statutes § 316.1933(1) and isolated dicta from State v. Acevedo to claim that probable cause alone empowered police to force a blood test over a driver’s explicit objection.

The appellate court has firmly slammed that door shut—formally receding from Acevedo and reaffirming that under the Fourth Amendment and Missouri v. McNeely, the natural metabolization of alcohol is not an automatic emergency and officers must secure a judicial search warrant. If law enforcement compelled first responders or hospital staff to draw your blood without a warrant in Tampa, Clearwater, St. Petersburg, or anywhere in Hillsborough or Pinellas County, that evidence may be subject to suppression.

Learn how Board Certified Criminal Trial Lawyer W.F. “Casey” Ebsary Jr. fights unlawful police searches by reviewing our firm credentials and bio. Protect your freedom today by contacting DUI2go.com through our case consultation page or calling (813) 222-2220.

For years following serious traffic crashes, Florida prosecutors have attempted to stretch statutory language to bypass the Fourth Amendment. When a driver refuses a voluntary blood test, law enforcement officers frequently cite Florida Statutes § 316.1933(1) to compel emergency medical personnel or hospital staff to draw blood anyway.

A recurring justification in the State’s playbook stemmed from isolated dicta in State v. Acevedo, 366 So. 3d 1096 (Fla. 4th DCA 2023), where an appellate panel remarked that even without consent, officers had “probable cause to coerce the blood draw.”

In a significant appellate decision, the Florida District Court of Appeal has closed that door, formally receding from the problematic language in Acevedo and reaffirming bedrock constitutional limits on warrantless bodily intrusions.

The Core Holding – DUI Blood Draws in Florida

The appellate court affirmed the trial court’s order granting the defendant’s motion to suppress blood draw results as the fruits of an unreasonable search under the Fourth Amendment.

The key takeaways from the ruling include:

1. No “Probable Cause” Exception to the Warrant Requirement: Florida Statutes § 316.1933(1) authorizes officers to require blood tests when there is probable cause that an impaired driver caused death or serious bodily injury. However, a state statute cannot dilute constitutional protections. Probable cause alone does not authorize police to invade a person’s bodily integrity without a search warrant.
2. Formal Receding from State v. Acevedo: Addressing widespread reliance by prosecutors on Acevedo, the court explicitly receded from any language suggesting that probable cause creates an independent exception allowing police to coerce or compel a blood draw.
3. Dissipation Is Not a Per Se Exigent Circumstance: Relying on the United States Supreme Court’s decision in Missouri v. McNeely, 569 U.S. 141 (2013), the court held that the natural metabolic dissipation of alcohol in the bloodstream does not automatically create an emergency. With modern electronic and telephonic warrant procedures widely available across Florida jurisdictions, officers must seek a warrant when feasible.
4. Implied Consent Does Not Equal Fourth Amendment Consent: Florida’s implied consent framework carries civil and administrative consequences (such as driver license suspensions), but statutory “implied consent” cannot substitute for voluntary consent or excuse the warrant requirement once a driver explicitly refuses.

Constitutional Law vs. State Statute: What Changed?

Defense Strategy: Challenging Compelled Blood Draws

For individuals facing felony DUI charges in Florida—including DUI Manslaughter and DUI with Serious Bodily Injury—this ruling provides a critical roadmap for defense counsel:

• Scrutinize Warrantless Procedures: If officers commanded medical staff or first responders to draw blood following a refusal without first applying for an electronic search warrant, the blood evidence is subject to suppression.
• Attack Claims of “Exigency”: Prosecutors must prove that officers lacked the time or ability to transmit a warrant affidavit to an on-call duty judge while medical treatment or crash investigations were underway.
• Challenge Coerced “Consent”: In many DUI investigations, officers warn suspects that refusing a draw is futile because “the law allows us to take it anyway.” Misrepresenting statutory authority invalidates voluntary consent as a matter of law.

Appellate Opinion Text & Record Reference

The full slip opinion affirming the suppression order is maintained on the Florida Courts appellate repository at Opinion_2025-1448.pdf.

Appellate Opinion Digest & Case Summary

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.

SEAN MICHAEL MARLIN,

Appellee.
No. 4D2025-1448
[September 2, 2026]

Appeal of a nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Thomas Michael Lynch, V, Judge; L.T.
Case No. 062018CF014657A88810.
James Uthmeier, Attorney General, Tallahassee, and Luke R.
Napodano, Senior Assistant Attorney General, West Palm Beach, for
appellant.
William R. Ponall of Ponall Law, Maitland, for appellee.
MAY, J.
Blood draws and DUI charges are at the center of this State appeal from
an order granting the defendant’s motion to suppress. The State argues
the trial court erred in granting the motion to suppress because no state
action occurred in obtaining the blood draw and probable cause supported
the State’s request for a blood draw. We disagree with the State for the
reasons explained below and affirm.

• The Facts
  The defendant was driving when his vehicle drifted onto the shoulder
  of the Turnpike and struck four motorcycles. The accident resulted in one
  fatality and injury to two other people. The State charged the defendant
  with two counts of DUI manslaughter (UBAL and impairment), two counts
  of DUI with serious bodily injury (UBAL and impairment), one count of DUI
  with injury, and five counts of DUI with property damage.

2

The defendant moved to suppress the blood draw results as fruits of an
unreasonable search. The defendant argued law enforcement did not
apply for a search warrant but instead asked the defendant to voluntarily
submit to a blood draw. When the defendant refused, law enforcement
had first responders compel the blood draw.
According to the motion to suppress, law enforcement contacted a state
attorney approximately two hours after the accident and were directed to
apply for a search warrant for the defendant’s blood. Approximately thirty
minutes later, the same state attorney told law enforcement they could
proceed with the blood draw because exigent circumstances existed due
to the elapsed time.
The defendant argued the blood draw was an unconstitutional search
because law enforcement did not obtain a warrant and lacked exigent
circumstances. The defendant argued that “(a) the natural dissipation of
alcohol, alone, does not create a per se exigency; and (b) law enforcement
cannot create its own exigency by failing to take measures to secure a
search warrant for a suspect’s blood.” The defendant requested the trial
court to suppress the blood draw results.
The State responded that law enforcement could order the blood drawn
based on exigent circumstances because the alcohol would dissipate in
the time needed to obtain the search warrant. Alternatively, the State
argued law enforcement could properly order the blood draw, pursuant to
section 316.1933, Florida Statutes (2018), based on State v. Acevedo, 366
So. 3d 1096 (Fla. 4th DCA 2023). In doing so, the State suggested Acevedo
held that section 316.1933 created an exception to the warrant
requirement for nonconsensual blood draws based on the existence of
probable cause. Finally, the State asserted that even if exigent
circumstances did not exist and section 316.1933 did not apply, the
defendant’s blood would have been obtained via inevitable discovery.

• Suppression Hearing & Order
  At the hearing on the motion to suppress, the trial court heard from
  numerous witnesses to the accident and investigation. Consistent with
  his motion, the defendant argued that law enforcement lacked exigent
  circumstances to conduct a warrantless, nonconsensual blood draw.
  During the discussion, the trial court noted that Acevedo’s “probable
  cause” language appeared “very contradictory” to other Florida caselaw
  and possibly to the United States Supreme Court’s decision in Missouri v.

3

McNeely, 569 U.S. 141 (2013).1 The defendant characterized the Acevedo
language as “unfortunate dicta.”
In Acevedo, the State charged the defendant with multiple DUI crimes
arising out of a rear-end collision. At the hearing on the motion to
suppress the blood draw, a law enforcement officer testified that a trooper
asked the defendant for consent to draw blood and the defendant
consented. The trooper also testified that he had properly advised the
defendant of his rights under Florida’s implied consent law.
The trial court suppressed the blood draw, concluding the State had
failed to establish the defendant’s voluntary consent. The trial court found
the defendant had not been advised of his “right to refuse and was
misadvised that if he did not agree, law enforcement would get a warrant
and take a blood sample against his will.” Id. at 1099. The State appealed.
On appeal, we found the record “provided sufficient probable cause to
believe” the defendant was under the influence. Id. at 1100. We then
stated that: “even if [the defendant] had not voluntarily consented to the
blood draw, the officer had probable cause to coerce the blood draw.” Id.
We reversed the order suppressing the blood draw.
Here, the State continued to argue that law enforcement had probable
cause for the blood draw, exigent circumstances existed to permit the
warrantless draw, and/or the results would have been inevitably
discovered.
The trial court found no consent had been given, no warrant had been
issued, and no exigent circumstances existed. The trial court also
concluded that inevitable discovery did not apply. Struggling with
Acevedo, the trial court denied the motion to suppress in a written order.
The defendant moved for rehearing and argued the trial court’s decision
and reliance on Acevedo’s “probable cause” language essentially
overturned McNeely. The trial court noted that if the State’s interpretation
of section 316.1933 was correct under Acevedo, the caselaw on consent
1 In McNeely, the Court addressed “whether the natural metabolization of alcohol
in the bloodstream presents a per se exigency that justifies an exception to the
Fourth Amendment’s warrant requirement for nonconsensual blood testing in all
drunk-driving cases.” 569 U.S. at 145. The Supreme Court held natural
metabolization does not present a per se exigency that justifies an exception to

the Fourth Amendment. Exigent circumstances must be decided on a case-by-
case basis based on the totality of the circumstances. Id. at 156.

4

and exigent circumstances would be irrelevant because police could “get
the blood” any time probable cause existed. The State argued that Acevedo
did not expressly find the defendant’s consent voluntary; therefore, the
“probable cause” language must have been a holding rather than dicta.
The trial court then reversed itself and granted the defendant’s motion
for rehearing and his motion to suppress.
From this order, the State now appeals.

• The Analysis
  We briefly review the law on blood draws in DUI cases.
  I. Blood Draws in DUI Cases
  DUI charges are extremely serious because of the potential harm
  driving under the influence can inflict on human lives and property. See
  Birchfield v. North Dakota, 579 U.S. 438, 443 (2016).2 So too are a
  defendant’s constitutional rights extremely serious and zealously guarded.
  See McNeely, 569 U.S. at 148. These two competing interests have been
  the subject of numerous opinions within and without our jurisdiction.
  They once again step into the legal boxing ring to compete.
  So, let’s start at the beginning. “The Fourth Amendment provides in
  relevant part that ‘[t]he right of the people to be secure in their persons,
  houses, papers, and effects, against unreasonable searches and seizures,
  shall not be violated, and no Warrants shall issue, but upon probable
  cause.’” Id. A motorist ordinarily may not be compelled “to submit to the
  taking of a blood sample or to a breath test unless a warrant authorizing
  such testing is issued by a magistrate.” Birchfield, 579 U.S. at 454. There
  are, however, exceptions.
  A. Consent
  Courts have consistently held that where actual consent exists, no need
  exists to rely on Florida’s implied consent laws or to obtain a warrant.
  Robertson v. State, 604 So. 2d 783, 790 (Fla. 1992) (“If the defendant has
  consented to the test, or consent is implied on some basis independent of
  the DUI laws, then the blood test falls wholly outside the scope of the
  2 “Alcohol consumption is a leading cause of traffic fatalities and injuries. During
  the past decade, annual fatalities in drunk-driving accidents ranged from 13,582
  deaths in 2005 to 9,865 deaths in 2011.” Id. at 465.

5

implied consent law.”); State v. Meyers, 261 So. 3d 573, 574 (Fla. 4th DCA
2018) (“The Florida Supreme Court has explained . . . that if a defendant
expressly consents to a blood test, ‘then the blood test falls wholly outside
the scope of the implied consent law.’” (quoting Robertson, 604 So. 2d at
790)); State v. Liles, 191 So. 3d 484, 487 (Fla. 5th DCA 2016) (“One of the
well-established exceptions to the requirements of both a warrant and
probable cause is a search conducted pursuant to consent.”).

B. Exigent Circumstances
Exigent circumstances is another such exception. But the Court made
clear that “while the natural dissipation of alcohol in the blood may
support a finding of exigency in a specific case, . . . it does not do so
categorically. Whether a warrantless blood test of a drunk-driving suspect
is reasonable must be determined case by case based on the totality of the
circumstances.” McNeely, 569 U.S. at 156.
C. Search Incident to Arrest
Most recently, the Court held that “a breath test, but not a blood test,
may be administered as a search incident to a lawful arrest for drunk
driving.” Birchfield, 579 U.S. at 476. The Court further held “that
motorists cannot be deemed to have consented to submit to a blood test
on pain of committing a criminal offense.” Id. at 477. In doing so, the
Court disavowed that statutory “implied consent” can serve as a substitute
for actual consent or a warrant.
D. Warrant Requirement
These recent decisions lead to but one conclusion. Unless a motorist
gives actual consent or a court determines under the totality of the
circumstances that exigent circumstances exist, a warrant must be
obtained for a blood draw to satisfy the Fourth Amendment. See Liles, 191
So. 3d at 488. This is true regardless of a state’s implied consent laws.
Following McNeely, we must read section 316.1933, Florida
Statutes, as a directive to law enforcement to obtain blood
samples in serious and deadly crashes when probable cause
exists to suggest impaired driving. To comply with McNeely,
the statute must assume the blood draw will be obtained with
a warrant, absent consent or proof of exigent circumstances.

6

Id. at 489.3
E. Implied Consent Laws
In State v. Marshall, 418 So. 3d 647, 650–51 (Fla. 4th DCA 2025), we
reviewed Florida’s implied consent laws. Those laws provide statutory
authority for breath, urine, and blood testing under specified
circumstances and provide administrative penalties for a motorist’s refusal
to comply. See §§ 316.1932–.1933, Fla. Stat. (2024). Those laws, however,
are subject to the constitutional safeguards outlined above and addressed
by the United States Supreme Court in McNeely and Birchfield.
II. The Present Case
Here, the State argues the trial court erred in granting the motion to
suppress because section 316.1933(1), Florida Statutes (2018), provided
the consent necessary to satisfy the Fourth Amendment. The State further
argues that section 316.1933(1) is not contrary to McNeely or any other
United States Supreme Court decision. The State suggests the trial court’s
ruling is contrary to Acevedo, which the State claims held that a blood
draw can be coerced when law enforcement has probable cause.4
The defendant responds that the trial court correctly granted the
motion to suppress. We agree.
“A trial court’s ruling on a motion to suppress comes to the appellate
court with a presumption of correctness and [we] must interpret the
evidence and reasonable inferences and deductions derived therefrom in a
manner most favorable to sustaining the trial court’s ruling.” R.F. v. State,
307 So. 3d 20, 22 (Fla. 4th DCA 2020) (citations omitted). We apply “a de
novo standard of review to the mixed questions of law and fact that
ultimately determine constitutional issues.” Id.
As we previously noted, the Fourth Amendment prohibits
“unreasonable searches” and applies to a blood draw. Birchfield, 579 U.S.
at 455. “To comply with the Fourth Amendment, law enforcement officers

3 We recognize that section 933.02 does not authorize search warrants for
misdemeanor DUIs.
4 On appeal, the State has abandoned its exigent circumstances and inevitable
discovery arguments made to the trial court, thus waiving those arguments. See
Hammond v. State, 34 So. 3d 58, 59 (Fla. 4th DCA 2010).

7

must obtain a warrant or consent for a blood draw, or there must be some
other exception to the warrant requirement.” Liles, 191 So. 3d at 486.
In Liles, the Fifth District rejected the State’s similar argument that the
parties’ statutory “implied consent” satisfied the Fourth Amendment. Id.
at 488. The Fifth District concluded that because the defendants did not
consent to the blood draw, “the warrantless blood searches were not
authorized by the consent exception.” Id.
The State acknowledges that its argument here runs afoul of Liles but
suggests we should decline to follow Liles. But we have previously agreed
with Liles. See McGraw v. State, 245 So. 3d 760, 769 (Fla. 4th DCA 2018).
There, we stated, “that when a defendant specifically withdraws his or her
consent, the state cannot compel a blood draw.” Id. We also advised, “the
State would not be able to rely on implied consent as an exception to the
warrant requirement.” Id.5
The State next argues that Acevedo created a “probable cause”
exception to the warrant requirement for blood draws.6 We disagree.
First, the U.S. Supreme Court has instructed us that a warrant is
required to obtain a blood draw unless exigent circumstances or actual
consent exists. Birchfield, 579 U.S. at 474 (“Blood tests are significantly
more intrusive, and their reasonableness must be judged in light of the
availability of the less invasive alternative of a breath test. Respondents
have offered no satisfactory justification for demanding the more intrusive
alternative without a warrant.”). Second, nothing in Acevedo articulated
such an exception. One thing is apparent, however: Acevedo’s language
has created confusion that needs clarification.
III. Clarifying Acevedo
In Acevedo, we stated that “even if [the defendant] had not voluntarily
consented to the blood draw, the officer had probable cause to coerce the
blood draw.” Acevedo, 366 So. 3d at 1100. Taking the sentence as worded,
5 The Florida Supreme Court subsequently vacated McGraw and remanded the
case for further proceedings consistent with Mitchell v. Wisconsin, 588 U.S. 840
(2019). McGraw v. State, 289 So. 3d 836, 839 (Fla. 2019).
6 The State argued Acevedo’s probable cause language was a holding rather than
dicta as evidenced by the defendant’s attempt to seek conflict jurisdiction in the
Florida Supreme Court. The State suggests that Acevedo “change[d] things”
concerning section 316.1933.

8

the first clause, by negative implication, reflects our decision that the
record supported the defendant’s actual consent to the blood draw.

It is the second clause, unnecessary to our decision and thus non-
binding dicta, that has created confusion.7 The State has taken Acevedo’s

language and run with it as a new exception to the Birchfield warrant
requirement to obtain a blood draw. We simply do not have the authority
to create an exception contrary to United States Supreme Court authority.
And Acevedo neither intended nor articulated a probable cause exception
by the language employed. To the extent the clause suggests otherwise,
we recede from that language.
For the foregoing reasons, we affirm the order suppressing the blood
draw in this case as it occurred without a warrant and without exigent
circumstances.
Affirmed.
SHEPHERD and LOTT, JJ., concur.
SHEPHERD, J., concurs specially with opinion.
SHEPHERD, J., concurring specially.
I concur with the majority opinion. I write simply to call attention to
two other opinions where we have either conflated the lines between actual
and statutory implied consent or misstated details of our DUI law. See,
e.g., Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1988), and State v.
Marshall, 418 So. 3d 647 (Fla. 4th DCA 2025).
Consent is an exception to a warrant requirement and to Florida’s
implied consent law. “The Florida Supreme Court has explained, however,
that if a defendant expressly consents to a blood test, ‘then the blood test
falls wholly outside the scope of the implied consent law.’” State v. Meyers,
261 So. 3d 573, 574 (Fla. 4th DCA 2018) (citing Robertson v. State, 604
So. 2d 783, 790 (Fla. 1992) (cleaned up)).
7 See Myrick v. State, 427 So. 3d 1, 12 (Fla. 4th DCA 2025) (Harper, Assoc. J.,
concurring in part) (“Because that dismissal was unnecessary to the Court’s
holding, it constitutes dicta rather than binding precedent.”) (emphasis added);
United States v. Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009) (explaining
dictum is “a statement in a judicial opinion that could have been deleted without
seriously impairing the analytical foundations of the holding”) (quoting United
States v. Crawley, 837 F.2d 291, 292 (7th Cir. 1988)); see also Cohens v. Virginia,
19 U.S. 264, 399 (1821) (stating “general expressions” not necessary to the
decision “ought not to control the judgment in a subsequent suit”).

9

Implied consent is codified in chapter 316, Florida Statutes (2024),
specifically sections 316.1932, .1933, and .1934. Florida’s implied
consent law, “essentially require[s] all persons accepting a license to drive
in Florida to consent to a blood-alcohol test upon being arrested for driving
under the influence.” Montes–Valeton v. State, 216 So. 3d 475, 481 n.1
(Fla. 2017) (quotation omitted).
Chu predates the more recent United States Supreme Court decisions
on blood draws, Missouri v. McNeely, 569 U.S. 141 (2013), and Birchfield
v. North Dakota, 579 U.S. 438, 443 (2016). The Florida Supreme Court in
Robertson v. State, 604 So. 2d 783, 790 (Fla. 1992), determined that “if the
defendant has consented to the test, or consent is implied on some basis
independent of the DUI laws, then the blood test falls wholly outside the
scope of the implied consent law.” Indeed, Robertson explained that the
implied consent law and its exclusionary rule apply only when blood is
taken pursuant to the statutory implied consent framework. Id. at 790
n.7.
In Chu, we held that law enforcement’s failure to advise the suspected
impaired driver of the consequences of refusing to consent to a breath or
urine test under Florida’s implied consent law was irrelevant where the
defendant had voluntarily consented to the blood draw. 521 So. 2d at 332.
This is consistent with the existing law and the majority opinion. Consent
is also an exception to the warrant requirement for a blood draw.
However, in Chu, we also suggested that consent meant the law
enforcement officer had “fully informed [the individual] that the implied
consent law required submission only to a breath or urine test and that
the blood draw was an alternative.” Id. at 332. In doing so, we blurred
consent with implied consent. It is unnecessary to advise a motorist of the
implied consent law where the driver provides actual and voluntary
consent. The two concepts provide distinct bases for obtaining a chemical
test, and the requirements attendant to one should not be imported to the
other. Law enforcement’s requirement to inform a motorist of the implied
consent law only comes into play when law enforcement seeks to rely upon
the statutory implied consent framework rather than a motorist’s actual
consent.
And in Marshall, we correctly quashed an order suppressing a blood
draw because we were “unable to discern the trial court’s rationale for
granting the motion.” Id. at 652. However, in discussing the various
implied consent laws, we stated that subsection 316.1932(1)(c) applied
when blood was drawn at a hospital or medical facility but not when the

10

blood draw occurred in a fire rescue ambulance parked at the accident
scene or en route to a hospital. But we failed to recognize that section
316.1932(1)(c) defines “other medical facility” to include “an ambulance or
other medical emergency vehicle.” § 316.1932(1)(c), Fla. Stat. (2024).
Thus, the statutory text itself identifies ambulances and medical
emergency vehicles as permissible locations for a DUI blood draw.
In Marshall, we also stated that “[s]ection 316.1932(1)(a) applies when
the blood test is ‘incidental’ to a lawful arrest and conducted ‘at the request
of a law enforcement officer who has reasonable cause to believe [the
individual] was driving or was in actual physical control of a motor vehicle
while under the influence’ of alcoholic beverages.” Marshall 418 So. 3d at

650. However, section 316.1932(1)(a) actually states, “[t]he chemical or
     physical breath test must be incidental to a lawful arrest and administered
     at the request of a law enforcement officer who has reasonable cause to
     believe such person was driving or was in actual physical control of the
     motor vehicle within this state while under the influence of alcoholic
     beverages.” § 316.1932, Fla. Stat. (2024) (emphasis added).
     Our subsequent cases have shifted from any broad reading of Chu, but
     we have not had the opportunity to revisit and vacate Chu’s language that
     requires an officer to read the implied consent law to obtain actual
     consent. In State v. Dubiel, 958 So. 2d 486 (Fla. 4th DCA 2007), we
     distinguished Chu and reversed an order suppressing blood test results
     where the defendant had consented to a blood draw performed at a
     hospital, even though law enforcement had not advised him of the
     consequences of refusal to consent. Likewise, in State v. Meyers, 261 So.
     3d 573 (Fla. 4th DCA 2018), without discussing Chu, we held that a blood
     draw administered in a hospital was admissible when the defendant had
     consented to the blood draw without being advised of implied consent.
     And in Department of Highway Safety & Motor Vehicles v. Davis, 264 So.
     3d 965 (Fla. 4th DCA 2019), we further distinguished Chu by holding that
     Dubiel, rather than Chu, controlled where the defendant was in the
     hospital and voluntarily consented to the blood draw, and by reiterating
     that, under those circumstances, the implied consent law did not apply
     and the officer therefore was not required to satisfy its statutory
     prerequisites.
     Thus, Dubiel, Meyers, and Davis have progressively narrowed Chu’s
     practical reach. And our sister court has gone further still. In State v.
     Murray, 51 So. 3d 593 (Fla. 5th DCA 2011), the court expressly observed
     that Chu “likely sweeps too broadly” and stated that, to the extent Chu
     requires implied-consent warnings despite a defendant’s actual voluntary
     consent, Murray was in “direct and express conflict” with Chu. Id. at 596.

11

Taken together, these cases underscore two related points. First,
consent and statutory implied consent are distinct concepts, and the
requirements of the implied consent law should not be imported into a
blood draw supported by a motorist’s voluntary consent. Consent can be
given by a motorist at any time, in any location, including in a setting
bereft of reasonable suspicion or probable cause if it is voluntary. Second,
when the implied consent statute does apply, the mere happenstance of
the defendant’s location is not determinative of whether breath, urine, or
blood is authorized. A blood draw in a hospital without consent must still
satisfy either the warrant requirement or the impractical/impossible prong
to qualify as legislatively authorized, pursuant to implied consent. If
consent is voluntarily given, location is irrelevant.
Alas, this case does not involve the problems raised by language in Chu
and Marshall, so those cases remain outside the reach of our majority
opinion. We shall have to wait another day to address these issues when
properly presented to us.

Not final until disposition of timely-filed motion for rehearing

Tampa School Zone Speed Camera Tickets: How I Challenge Florida Automated Speeding Citations

If you received a school zone speed camera ticket in Tampa, Hillsborough County, Pinellas County, or anywhere in Florida, do not assume that the photograph on the Notice of Violation means the case is over.

Florida law permits certain automated speed detection systems to be used in designated school zones. But when I evaluate one of these cases, I do not stop at the photograph. I want to know where the camera was located, when it was operating, what speed it recorded, what equipment produced the evidence, whether the required records exist, how the government intends to prove ownership, and whether the evidence can be admitted in court.

Tampa and Hillsborough County School Zone Camera Locations Map

That distinction became particularly important following two 2026 Florida trial-level decisions involving school-zone speed detection systems: State v. Cardoza in Broward County and State v. Lesmay Gonzalez Rives in Lee County.

The Cardoza order addressed whether the government could use speed evidence from a school-zone speed detection system without establishing the required device approval. The court concluded that the approval requirement remained applicable and dismissed the case when the State could not establish approval.

The Rives order addressed a different evidentiary problem: how the municipality attempted to prove the identity of the registered vehicle owner. The court sustained a hearsay objection to testimony concerning information obtained from the DAVID database and entered a judgment of acquittal after the municipality failed to introduce a certified vehicle registration.

I do not consider either county-court order a statewide binding rule. Instead, I view them as important decisions that demonstrate why I examine the government’s evidence before advising a client whether to contest an automated speeding citation.

Florida School Zone Speed Camera Law

Florida Statutes § 316.1896 establishes the statutory framework for school-zone speed detection system enforcement.

The statute permits a county or municipality to authorize traffic infraction enforcement officers to issue uniform traffic citations for specified violations of Florida’s school-zone and general speeding laws when the violation is evidenced by an authorized speed detection system.

The statute is specific about when automated enforcement can be used. For example, § 316.1896 addresses certain violations occurring more than 10 miles per hour over the applicable school-zone speed limit around the beginning or end of regularly scheduled school sessions and certain violations occurring during a regularly scheduled school session. That means I want to examine more than the number printed on the ticket.

What I Want to Know About the Camera

One of the most useful features I would add to this page is an interactive school-zone speed-camera map.

Florida law requires counties and municipalities operating speed detection systems to report information concerning the location of each system, including geographic coordinates, directional approach, school name, school level, operating times, applicable speed limits, and activation or deactivation dates.

Coming Soon Interactive Tampa School Zone Speed Camera Map

[INTERACTIVE MAP EMBED – INSERT YOUR TAMPA/HILLSBOROUGH CAMERA MAP HERE]

Recommended map filters:

I would make the map searchable by Tampa, Brandon, Riverview, Temple Terrace, Plant City, and other Hillsborough County communities rather than forcing visitors to search through a long list of camera locations.

What Happened in State v. Cardoza?

The 2026 State v. Rafael D. Cardoza order came from the Broward County Court.

According to the order, the vehicle was recorded traveling 42 miles per hour in a 30-mph school zone in Hollywood. The defense challenged the admissibility of the speed evidence because the speed detection system had not been shown to be approved by the Florida Department of Highway Safety and Motor Vehicles.

The City argued that § 316.1906(3) exempted school-zone speed detection systems from the approval requirement because the statute establishes different testing requirements for those systems.

The court rejected that interpretation.

Design Requirements Are Not Necessarily Device Approval

Florida Statutes § 316.1906(3) provides specific requirements for school-zone speed detection systems, including the ability to perform self-tests, self-testing at least every 30 days, maintenance of self-test logs, and an independent calibration test at least every 12 months.

The Cardoza court distinguished those requirements from the separate approval requirement contained in Florida Administrative Code Rule 15B-2.007(1).

The Florida Department of State’s current administrative-rule listing identifies Rule 15B-2.007 as “Approval Requirements” within Chapter 15B-2, “Speed Measuring Devices.”

According to the Cardoza order, the Legislature had exempted school-zone speed detection systems from particular design criteria but had not expressly exempted them from the approval requirement.

The court therefore concluded that the speed evidence could not be used without the required approval and granted the defense motion.

The Cardoza School Zone Camera Defense Theory

I want to emphasize something important. I would not tell every client with a Florida camera ticket that the ticket must be dismissed because of Cardoza. That would go beyond what this trial-level order establishes. Instead, I would ask whether the facts and evidence in the particular case present the same or a similar issue.

What Does Florida’s Administrative Rule Say?

Florida Administrative Code Chapter 15B-2 is titled Speed Measuring Devices. The Department of State’s current rule listing identifies Rule 15B-2.007 as Approval Requirements and Rule 15B-2.013 as Approved Speed Measuring Devices.

This is why I want to identify the actual system used in a camera case.

A defense investigation should not simply ask:

“Was there a camera?”

I want to ask:

“What exact speed-measuring system produced the evidence, and what documentation establishes that the system satisfies the requirements applicable to its use in court?”

That is a much more useful question.

What Happened in State v. Rives?

The second 2026 order involves State v. Lesmay Gonzalez Rives, Lee County Court Case No. 25-TR-061175.

The supplied order states that Cape Coral used a school-zone speed detection system operated under contract by RedSpeed Florida, LLC. After the system captured the vehicle and license plate, the police sergeant entered the plate information into the state’s DAVID database to determine the registered owner.

Defense counsel objected to the officer’s testimony concerning the registered owner’s identity.

The court sustained the objection.

According to the order, the court found that the testimony concerning the registered owner’s identity constituted hearsay and that no certified copy of the vehicle registration had been introduced. The court therefore entered a judgment of acquittal.

The order also discusses Kahn v. State, Holborough v. State, and Riggins v. State in analyzing the hearsay issue.

The source material states that a notice of appeal was filed June 5, 2026. I have not verified a later appellate disposition, so I will not speculate about what happened after that filing.

Why Florida Hearsay Law Matters

Florida Statutes § 90.801 defines hearsay as a statement made outside the trial or hearing that is offered to prove the truth of the matter asserted, subject to the statutory definitions and exceptions.

That can become important when an officer attempts to prove a fact by repeating information obtained from a computer system, database, document, or another source.

I do not treat every computer record as automatically inadmissible.

Instead, I ask:

1. What exactly is the evidence?
2. Who created it?
3. Who is offering it?
4. Why is it being offered?
5. What foundation has been established?
6. Does a hearsay exception apply?
7. Is the government offering a certified record or simply testimony about what a database displayed?

Those questions can make the difference between evidence that can be considered and evidence that cannot.

Florida School Zone Camera Evidence Checklist

When I evaluate one of these cases, I want to build the evidence chain from beginning to end.

A Camera Photograph Is Not the Entire Case

One of the biggest misconceptions I see with automated enforcement is the belief that the photograph is the case. It is not necessarily the entire case.

The photograph may show a vehicle. It may show a license plate. The system may report a speed. But the government may still need to establish other facts through admissible evidence. That is why I examine the entire evidentiary chain.

My Approach

If one part of that chain presents a legally significant problem, I want to know about it before advising my client to simply pay the citation.

Coming Soon Video: Can a Florida School Zone Camera Ticket Be Challenged?

[VIDEO EMBED VIDEO HERE]

Six-Second Video Script

“Got a Florida school-zone camera ticket? Before paying, I want to examine the camera, evidence, and legal requirements.”

Video Title

Florida School Zone Speed Camera Tickets: What I Check Before You Pay

Video Description

I explain what I look for when reviewing a Florida school-zone speed camera ticket, including the speed detection system, applicable testing and approval requirements, ownership evidence, and the admissibility of the government’s evidence.

This video is informational and does not create an attorney-client relationship.

Frequently Asked Questions About Florida School Zone Camera Tickets

Tampa School Zone Camera Ticket Defense

If you received a camera-generated speeding citation in Tampa or Hillsborough County, I want to look beyond the face of the ticket. I want to know:

Was the camera operating where and when the law permits?

What system generated the speed reading?

Can the government establish the applicable device requirements?

Are the required testing and calibration records available?

How will the government prove the identity of the registered owner?

What evidence will actually be admissible at the hearing or trial?

Those are very different questions from simply asking whether a camera took your picture.

Why I Take an Evidence-First Approach

I am W.F. “Casey” Ebsary, Jr. I am a Florida trial lawyer, and my practice is built around examining the government’s evidence and challenging the State when the evidence does not satisfy the requirements of the law.

A school-zone camera case may appear simple because there is a photograph and a recorded speed. But the legal case can be more complicated.

The 2026 Cardoza and Rives orders illustrate two different evidentiary issues that can arise in automated school-zone enforcement: the evidence used to establish speed and the evidence used to establish vehicle ownership.

I do not promise that every camera ticket can be dismissed. I do not tell clients that one trial-court order automatically controls every Florida case. What I do is examine the actual evidence and determine whether there is a legitimate legal basis to challenge the citation.

Get My Help With a Florida School Zone Camera Ticket

If you received a school-zone speed camera citation in Tampa, Hillsborough County, or elsewhere in Florida, you can learn more about me on my Attorney Bio page.

If you want my office to review your situation, use my Contact page.

Before you simply pay an automated school-zone speeding citation, I want to know what evidence the government has and whether that evidence can legally establish the violation.

Important Disclaimer

This page is provided for general informational purposes and is not legal advice for any particular case. The 2026 Cardoza and Rives decisions discussed above are the decisions described in the source material provided for this article. I have not characterized either county-court order as binding statewide precedent. The source material reports a June 5, 2026 appeal in Rives, and I have not stated a subsequent appellate outcome that I could not verify.

Florida statutes, administrative rules, and judicial decisions can change. The facts and evidence in your case may also be materially different.

Official Florida Resources

Florida Statutes § 316.1896 — School Zone Speed Detection Enforcement

Florida Statutes § 316.1906 — Speed Detection Systems and Evidence

Florida Statutes § 90.801 — Hearsay

Florida Administrative Code Chapter 15B-2 — Speed Measuring Devices

Justia Statute Resources

Florida Statutes § 316.1896

Florida Statutes § 316.1906

Florida Statutes § 90.801

Full Text of Court Decisions

1. 34 Fla. L. Weekly Supp. 149a

Online Reference: FLWSUPP 3403CARD

STATE OF FLORIDA, v. RAFAEL D. CARDOZA, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 25169380T120A. April 27, 2026. Thomas M. Wich, Traffic Hearing Officer. Counsel: Julian S. Geraci, Assistant City Attorney, City of Hollywood, Hollywood, for State. Mark Gold, The Ticket Clinic, Miami, for Defendant.

ORDER

THIS CAUSE came before the Court on Defendant’s Motion in Limine to Exclude all Speed Evidence derived from School Zone Speed Detection System. Having reviewed the Motion, the City’s Response, and the applicable law, and being fully advised in the premises, the Court finds as follows:

On April 15, 2025, at approximately 9:16 a.m., a 2016 Ford bearing Florida tag DH02AY, registered to (“Defendant”), was recorded via the City’s speed detection system at the 3500 Block of Taft Street in Hollywood, Florida traveling at a rate of 42 miles per hour in a school zone where the speed limit is 30 miles per hour. On April 17, 2025, the Defendant was issued a Notice of Violation (“NOV”) for unlawful speed in a school zone in violation of §318.1985(10), Florida Statutes, pursuant to §316.1896, Florida Statutes. The NOV specified available remedies, included photographic evidence, and notified Defendant of the consequences of non-payment, including issuance of a Uniform Traffic Citation (“UTC”). Defendant did not pay the violation; thus, a UTC was issued on October 29, 2025, and sent by certified mail. Defendant filed a written plea of not guilty on December 18, 2025, and subsequently filed the instant Motion on March 22, 2026.

II. ARGUMENTS AND APPLICABLE LAW

Florida Administrative Code Rule 15B-2.007(1) provides: “All speed measuring devices to be used in obtaining evidence of motor vehicle speeds for use in any court in the State of Florida shall be of a type approved by the Department of Highway Safety and Motor Vehicles prior to their use.”

The defendant asserts that the requirement is mandatory and applies to all speed measuring devices used in any court proceeding. The City contends that Section 316.1906 eliminates the approval requirement for camera speed enforcement citations.

Section 316.1906(3), Florida Statutes, provides that school zone speed detection systems are not required to meet certain design criteria established by the Department (referring to DHSMV). “A speed detection system is exempt from the design requirements for radar or Lidar units established by the department. A speed detection system must have the ability to perform self-tests as to its detection accuracy. The system must perform a self-test at least once every 30 days. The law enforcement agency, or an agent acting on behalf of the law enforcement agency, operating a speed detection system must maintain a log of the results of the system’s self-tests. The law enforcement agency, or an agent acting on behalf of the law enforcement agency, operating a speed detection system must also perform an independent calibration test on the speed detection system at least once every 12 months. The self-test logs, as well as the results of the annual calibration test, are admissible in any court proceeding for a uniform traffic citation issued for a violation of s. 316.1895 or s. 316.183 enforced pursuant to s. 316.1896. Notwithstanding subsection (2), evidence of the speed of a motor vehicle detected by a speed detection system compliant with this subsection and the determination by a traffic enforcement officer that a motor vehicle is operating in excess of the applicable speed limit is admissible in any proceeding with respect to an alleged violation of law regulating the speed of motor vehicles in school zones.”

It is clear the tests for the camera devices are different from the other Radar and Lidar devices used by law enforcement in non camera enforcement, however, the actual approval for the devices with the different tests still clearly requires the approval of the actual device by the Department.

Florida courts consistently apply the canon “expressio unius est exclusio alterius”, the expression of one thing implies the exclusion of another. In Thayer v. State, 335 So. 2d 815,817 (Fla.1976), the Florida Supreme Court held, when considering a statute which would limit certain restaurant licenses.

“Under the doctrine of expressio uni us est exclusio alterius, the mention of one thing implies the exclusion of another.” Florida courts are equally clear that they may not rewrite statutes by inserting language the Legislature chose not to include. Likewise, in Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898,900 (Fla. 1996) [21 Fla. L. Weekly S41b], the Court held that courts must give effect to statutory language as written and may not expand it beyond its plain terms. “Even where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity” Florida Department of Revenue v. Florida Municipal Power Agency, 789 So 2d 320 (Fla. 2001) [26 Fla. L. Weekly S422a], citing Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452,454 (Fla. 1992)

The Legislature expressly exempted school zone speed detection systems from The design criteria required of non-stationary Radar and Lidar devices used by law enforcement enforcing non camera speed detectors The Legislature did not exempt such systems from the requirement that speed measuring devices be approved by the Department.

Under Thayer, Young, and Crescent Miami Center, this omission must be treated as intentional. This Court is not permitted to add an exemption for approval that the Legislature did not include. Accordingly, the approval requirement in Fla. Admin. Code R. 15B-2.007(1) remains fully applicable in this case.

The State sought to introduce speed evidence derived from a school zone speed detection system and asked if it had the device approval from the Department and the response was in the negative. The State cannot establish that the device used is a type approved by the Department. Without such approval, the evidence derived from the device is not authorized for evidentiary use in any court in Florida.

III. CONCLUSION AND ORDER

Accordingly, the Court finds that without the approval of the speed detection device by the Department the actual speed of the defendant cannot be determined and all evidence concerning the speed and accompanying documentation cannot be admitted and the Defendants Motion granted and the case is dismissed.

2. 34 Fla. L. Weekly Supp. 150a

Online Reference: FLWSUPP 3403RIVE

STATE OF FLORIDA, Plaintiff, v. LESMAY GONZALEZ RIVES, Defendant. County Court, 20th Judicial Circuit in and for Lee County. Case No. 25-TR-061175. May 6, 2026. Randy E. Merrill, Hearing Officer. Counsel: Joshua Fredrickson and Kimberly Sams, Assistant City Attorneys, Cape Coral, for Plaintiff. Ted Hollander, The Ticket Clinic, West Palm Beach, and Jackson Todd, The Ticket Clinic, Fort Myers, for Defendant.

[Notice of Appeal filed June 5, 2026, Case No. 26-AP-000002.]

AMENDED ORDER

THIS CAUSE came before the Court for a non-jury trial on April 14, 2026. Present on behalf of the Defendant were Ted Hollander, Esquire and Jackson Todd, Esquire. Present on behalf of the City of Cape Coral were Joshua Fredrickson, Esquire, and Kimberly Sams, Esquire. Sergeant Patrick Taylor of the Cape Coral Police Department testified on behalf of the City.

Testimony elicited at the trial was that The Defendant was charged by Uniform Traffic Citation with unlawful speed in a school zone as a result of the Defendant being sent a notice of violation that the Defendant chose to contest.

At the time the violation occurred, the school zone was being monitored by a speed detector pursuant to the City’s school zone safety program instituted pursuant to F.S. 316.1896, F.S.316.1896, F.S. 316.0083 and F.S. 316.0776, and operated pursuant to contract by RedSpeed Florida, LLC. The Defendant’s citation was generated by virtue of the system being triggered by a vehicle travelling in excess of the school zone limit at the time and a photograph of the rear of the vehicle and a close-up photograph of the vehicle’s rear license plate was captured along with details of the circumstances surrounding the violation. The notice of violation was sent to the registered owner of the vehicle. The Defendant contested the violation and the trial was conducted.

At the trial, Sergeant Taylor testified and he was the officer in charge of the system and who reviewed the details and ultimately issued the uniform traffic citation. During his testimony, the issue of the identification of the driver was raised. Sergeant Taylor testified that he reviewed the photograph made it a time of the violation, and noted the license plate number, make, and model of the vehicle. He then entered the information obtained from the license plate into the State Driver and Vehicle Identification Database (DAVID), To obtain the registered owner’s information. That database revealed the defendant as the first registered owner. The defense objected on the grounds that the information was hearsay. After brief argument, the court asked for briefing of the cases argued and reserved ruling on the objection.

After receiving case law from both the city and the defendant, and the court having reviewed the cases and the testimony from the trial, finds as follows:

The testimony regarding the registered owner of the vehicle from the license plate information is hearsay under F.S. 90.801 and admissible only if and it falls within an exception to the hearsay rule. The defense argues that the owner’s information from the registration could come into evidence only if the registration information was on a certified of the vehicle registration. There was no certified copy offered in evidence. The City of argues that a certified copy is not a requirement and cites State v. Vanderpool, 2011 WL 2742641 (Fla.Co.Ct.) (Trial Order) County Court of Miami-dade County, Florida. In Vanderpool, the City of Miami Beach used an electronic database to obtain the name and address of the registered owner. The Vanderpool Court found that because the information was obtained electronically by computer, the information is not hearsay. No exception to the hearsay rule was cited in the opinion,

A case more on point are Kahn v. State, 243 So. 3d 506 (Fla. 2DCA 2018) [43 Fla. L. Weekly D747a] and Holborough v. State, 103 So. 3d 221 (Fla. 4DCA 2012) [37 Fla. L. Weekly D2735b]. I0n Holborough, an officer based the identification on a Florida ID displayed to him. The Court found the officer’s in-court testimony as to what the ID said was hearsay, falling into no exception. “The officer’s testimony was offered for the truth of the matter. .” (id at 223). Kahn referenced Holborough and stated that such identification testimony was inadmissible hearsay even supposing an exception to the hearsay rule applied as a public record under F.S. 90.803(8) the exception for public records, citing Tillman v. State, 964 So. 2d 785, 787-789 (Fla. 4DCA 2007) [32 Fla. L. Weekly D2161a]. See also Riggins v. State, 67 So. 3d 244, (Fla. 2DCA 2010) [35 Fla. L. Weekly D2480b]. In Riggins, the only evidence offered to prove the identity of the driver was the officer’s use of his in-car computer to search the VIN through FCIC/NCIC which indicated that Riggins’ car was not registered properly — which was a charge against him. The Court found the officer’s testimony as to what the FCIC/NCIC readout said was hearsay. The Court noted that the State could have obtained a certification from the Department of Highway Safety and Motor Vehicles to establish the registration issue.

In review of the above, the Court finds the testimony as to the identity of the registered owner herein is hearsay and not within an exception.

Therefore, the Defendant’s objection to the testimony regarding the registered owner of the vehicle in this case is SUSTAINED.

As a result of this Order, the Defendant is granted a judgment of acquittal.

Can an Off-Duty Police Officer Stop You for DUI Outside Their Jurisdiction in Florida?

Description of Question Presented:

Can an off-duty police officer stop you for DUI outside their jurisdiction? Learn how Florida courts analyze citizen’s arrests and breach of the peace.

Comparison of Cases Discussed in the Opinion

How Do I Investigate Cases Like This?

Every DUI case begins with questions. I obtain dispatch recordings, CAD reports, body camera video, dash camera footage, witness statements, agency policies, and any available surveillance footage. I also compare every observation made by law enforcement with the actual video evidence to determine whether the reported driving behavior supports the stop described in the police reports.

Could Jurisdiction Still Be a Valid Defense?

Absolutely. Just because an appellate court upheld one stop under one specific set of facts does not mean every out-of-jurisdiction DUI stop is lawful. The opinion repeatedly compares its facts with other Florida cases involving less serious driving conduct, demonstrating that these cases remain highly fact-specific.

Why Contact Me Quickly After an Arrest?

The legality of a traffic stop is only one issue I investigate. Every DUI prosecution also raises questions involving the initial detention, field sobriety exercises, breath or blood testing, officer observations, constitutional protections, and procedural requirements.

If you have been arrested for DUI in Florida, I encourage you to learn more about my background on my About page:

About W.F. Casey Ebsary: https://dui2go.com/about/

If you would like to discuss your case directly, you can reach me through my Contact page:

Contact My Office: https://dui2go.com/contact/

Full Text of Opinion

If you or a loved one are facing DUI charges, it is vital to understand that law enforcement must follow strict constitutional procedures. A recent case, State of Florida v. Mark A. Waszak, highlights a critical legal boundary: the difference between a valid investigatory stop and an unlawful detention. As a Board Certified Criminal Trial Lawyer, I have spent decades helping individuals navigate the complexities of these Florida DUI defense cases.

The Background of the Case

In this Lake County, Florida case, law enforcement received a report of a van driving erratically. An officer observed the vehicle crossing the “fog line” twice and initiated a traffic stop, citing reasonable suspicion of impaired driving. While the court agreed that the initial stop was lawful, the subsequent events were problematic. After stopping the vehicle, the officer did not begin a DUI investigation. Instead, they waited for a specialized DUI unit to arrive. The defendant was detained for nearly 15 minutes before any investigation into the alleged DUI even began.Why the Motion to Suppress Was Granted

The defense argued that this delay constituted an unreasonable detention. The court analyzed the situation and made a pivotal distinction:

• Valid Stop: The officer had “founded suspicion” to stop the vehicle based on the tip and their own observations of the driver crossing the fog line.
• Unlawful Detention: While the initial stop was valid, the court ruled that the detention was unconstitutional because the officer failed to begin the investigation immediately. Forcing the defendant to wait for a specific DUI unit without initiating the investigation created an unlawful detention.

Ultimately, the court granted the Defendant’s Amended Motion to Suppress Unlawfully Obtained Evidence, ruling that the detention exceeded the scope of a standard traffic stop. You can learn more about how I evaluate these types of investigations on my About Me page.Protecting Your Rights

This case serves as a reminder that police interactions must be reasonable in scope and duration. If you are worried about what happened during your arrest, or if you are facing a first-time DUI charge, it is essential to examine whether the police followed constitutional protocols during the stop and subsequent detention. If your rights were violated, you may have grounds to suppress evidence.

I invite you to review my full list of practice areas to see how my approach to strategic case preparation can work for you. If you are ready to speak with me directly about your situation, please contact me through my secure online page to schedule a consultation.—–

Full Text of the Order: State of Florida v. Mark A. Waszak

STATE OF FLORIDA, v. MARK A. WASZAK, Defendant.
Circuit Court, 5th Judicial Circuit in and for Lake County.
Case No. 2017-CE-2410. July 12, 2018. Mark A. Nacke, Judge.

ORDER ON DEFENDANT’S AMENDED MOTION TO SUPPRESS UNLAWFULLY OBTAINED EVIDENCE

THIS CAUSE having come before this Court pursuant to the Defendant’s Amended Motion to Suppress Unlawfully Obtained Evidence and the Court having heard the testimony of witnesses and argument of counsel, finds as follows:

On June 24, 2017, the Lake County Sheriff’s Department received a call from a motorist that a white service van had veered into oncoming traffic almost causing an accident. Deputy Holcomb was in the area and located a vehicle matching that description. Deputy Holcomb got behind the vehicle and followed it a short distance. On two occasions, Deputy Holcomb observed the vehicle veer toward the shoulder of the road crossing the white “fog” line. Deputy Holcomb, was suspicious that the driver could be under the influence and he stopped the vehicle. The Defendant was the driver and the only occupant of the vehicle. Deputy Holcomb interacted with the Defendant and noticed that his speech and movements were unusually slow, however, Deputy Holcomb did not notice an odor of alcohol. When asked to step out of the vehicle the Defendant was so unsteady on his feet that Deputy Holcomb had him sit on the bumper of the van. The Sheriff’s Department DUI unit was asked to respond to the location where the Defendant was stopped. Corporal Chessher, of the DUI unit, testified that she arrived at the location in a little less than 15 minutes after the request. Nothing was done concerning the investigation of the DUI until Corporal Chessher arrived. Corporal Chessher was informed of the situation and made contact with the Defendant. After performing some field sobriety exercises the Defendant was arrested for DUI and taken to the Lake County Jail. The Defendant took a breath test for alcohol with negative results. The Defendant refused to provide a urine sample.

The Defendant argues that all the evidenced should be suppressed because Deputy Holcomb had no probable cause or reasonable suspicion to stop the Defendant and that he was unreasonably detained while waiting for the DUI unit to arrive.

In State v. Carina, 506 So.2d 495 (Fla. 5th DCA 1987), a law enforcement officer followed the vehicle driven by Mr. Carrillo and observed the vehicle, more than five times, weave from one side of his lane to the other touching the lane boundary lines, but not leaving his lane. Although, not a violation of the traffic laws, it did give the officer a “founded suspicion” that Mr. Carrillo was driving under the influence and a legal basis for an investigatory stop.

In this case, considering the caller; Deputy Holcomb finding a vehicle matching the description the caller gave; and Deputy Holcomb observing the Defendant’s vehicle, on two occasions, within a short period of time, veer toward the shoulder of the road crossing the “fog line,” Deputy Holcomb had a founded or reasonable suspicion that the Defendant was operating his vehicle while under the influence. Deputy Holcomb’s stop was a valid investigatory stop, however, the detention of the Defendant while waiting for Corporal Chessher to arrive without beginning an investigation is an unlawful detention.

It is therefore, ORDERED AND ADJUDGED that the Defendant’s Amended Motion to Suppress Unlawfully Obtained Evidence is granted based upon the illegal detention.

Tampa DUI Expert & Board-Certified Defense: Navigating Florida Cases

Description: Facing a DUI charge in Tampa? Consult W.F. Casey Ebsary Jr., a board-certified criminal trial lawyer and DUI expert. Get direct help now.

The Reality of Facing a DUI Charge in Florida

When a client walks into my office or calls me after a late-night arrest in Hillsborough, Pinellas, or Pasco County, the immediate emotion is almost always panic. They are worried about their driver’s license, their job, their insurance rates, and the prospect of a criminal record. As a board-certified criminal trial lawyer who has spent decades handling driving under the influence cases in Florida courts, I tell every client the same thing to start: take a breath, look at the actual facts, and let’s examine what the State is required to prove.

In Florida, a DUI charge carries immediate administrative and criminal consequences. Within ten days of an arrest, drivers face an administrative suspension of their driving privileges unless they fight back through formal or informal review hearings with the Department of Highway Safety and Motor Vehicles (DHSMV). On the criminal side at the George E. Edgecomb Courthouse on Twiggs Street or in neighboring jurisdictions, the prosecution must establish beyond a reasonable doubt that a driver was either impaired by alcohol or controlled substances, or had an unlawful blood alcohol level (BAC) of 0.08 or higher.

Understanding how these cases are built requires looking under the hood of standard law enforcement procedures. From traffic stops triggered by erratic driving patterns or modern automated license plate readers (ALPRs) to standardized field sobriety exercises (SFSEs) and breath testing protocols, every single link in the evidentiary chain can be tested, challenged, and dissected. If you are experiencing your first brush with the legal system, you can review our dedicated breakdown on handling your First Time With a DUI Charge.

Core Pillars of Florida DUI Defense: A Comparative Analysis

To understand how a defense strategy takes shape, it helps to break down the primary phases of a DUI investigation and how an experienced practitioner evaluates them.

Understanding the Legal Landscape: Key Distinctions

Navigating a DUI defense requires recognizing the strict separation between the administrative suspension handled by the DHSMV and the criminal prosecution handled by the State Attorney’s Office.

The Dual-Track Process

1. The Administrative Battle: The clock starts ticking the moment a driver is arrested or refuses a breath test. You have a very limited window (typically 10 days) to request a formal review hearing to challenge the suspension of your driver’s license. To explore the procedural nuances of these hearings, read our resource on Florida DUI License Hearings (DHSMV Formal & Informal Review).
2. The Criminal Battle: Handled in criminal court, this track determines guilt or innocence, potential probation, fines, community service, DUI school, and mandatory ignition interlock requirements.

Frequently Asked Questions (Q & A)

1. What makes W.F. Casey Ebsary Jr. uniquely qualified to handle my Florida DUI case?

I am Board Certified by The Florida Bar as a Criminal Trial Lawyer, an AV Preeminent-rated attorney by Martindale-Hubbell, and recognized as a Super Lawyer. My background includes working as both an Assistant State Attorney (prosecutor) and an Assistant Public Defender, giving me a complete view of how the courtroom operates from every angle. You can learn more about my background on my Attorney Profile.

2. How quickly do I need to act after a Florida DUI arrest?

Time is of the essence. You generally have only 10 days from the date of your arrest to challenge the administrative suspension of your driver’s license with the DHSMV. Missing this window can result in an automatic hard suspension. Reaching out immediately via our Contact Page ensures we can protect your driving privileges right away.

3. Can a breath test result be challenged in court?

Yes. Breath testing instruments require strict calibration, maintenance logs, and adherence to testing protocols—including a mandatory 20-minute observation period to ensure the subject does not regurgitate, ingest items, or introduce contaminants that could skew the reading. Errors in any of these areas can render the test results unreliable, insights explored further in our Florida Breath Test Guide.

4. What is the difference between a first-time DUI and subsequent offenses?

First-time DUI convictions in Florida carry penalties that include fines, probation, community service, DUI school, and potential ignition interlock device requirements. Subsequent offenses within certain timeframes carry mandatory minimum jail sentences, substantially higher fines, and longer driver’s license revocations. For those navigating initial charges, review our guidance on First Time With a DUI Charge.

5. Do I have to perform roadside field sobriety exercises?

In Florida, standardized field sobriety exercises (such as the Walk-and-Turn or One-Leg Stand) are voluntary. While declining them may lead to an arrest based on existing observations, these exercises are notoriously subjective and are frequently used by law enforcement to build probable cause rather than accurately measure sobriety.

6. What happens if I refused to take a breath, blood, or urine test?

Under Florida’s implied consent law, refusing a lawful chemical test results in an automatic administrative suspension of your driver’s license for one year (or 18 months for a second refusal). Furthermore, a refusal can sometimes be introduced by the State in criminal court as evidence of consciousness of guilt, a topic we detail extensively in our Florida Breath Test Refusal overview.

7. Which counties do you serve for DUI defense?

My primary office is located in Hillsborough County at 2102 W Cleveland St, Tampa, FL 33606, where I frequently handle matters at the Twiggs Street Courthouse and the local DHSMV office. I also regularly represent clients facing criminal charges throughout Pinellas County and Pasco County.

8. What should I expect during my initial consultation?

When you reach out to discuss your case, we will review the exact circumstances of your stop, the officer’s narrative, any testing procedures performed, and your licensing status. Consultations are confidential, direct, and focused on building an aggressive, realistic defense strategy tailored to your situation.

9. Are all DUI arrests initiated by erratic driving?

No. Many modern DUI investigations begin due to automated license plate reader (ALPR) notifications, routine equipment checks (such as a broken taillight), or checkpoint operations rather than classic indicators of erratic driving.

10. How can I get in touch with your office directly?

You can call our office directly at 813-222-2220 or submit an inquiry through our secure online intake form. We are available 24/7 to address urgent legal emergencies. Visit our Contact Page for complete location and mapping details.

Take Action to Protect Your Future

A DUI charge is serious, but it is not a conviction. Having a dedicated, board-certified trial specialist in your corner changes the dynamic of your case from the very beginning. Whether we are fighting the administrative suspension of your driver’s license or filing motions to suppress unlawful evidence in court, my practice is built around relentless defense advocacy.

• Call Now: 813-222-2220
• Office Location: 2102 W Cleveland St, Tampa, FL 33606
• Online Support: Send a message directly via the DUI2go Contact Page to schedule your confidential case evaluation.

Understanding Automatic License Plate Recognition (ALPR) and Traffic Stops

Automatic License Plate Recognition systems and Automated law enforcement tools have transformed how police monitor public roadways. Among these, Automatic License Plate Recognition (ALPR)—sometimes referred to as License Plate Recognition Systems (LPRS)—plays a pivotal role in modern policing. For drivers navigating Florida roads, understanding how these video systems operate is essential.

If you are facing traffic or criminal charges resulting from an automated traffic stop, professional guidance can make all the difference. Learn more about tech-based defense strategies by visiting our bio page.

Florida Automatic License Plate Recognition Attorney

Were you stopped or arrested in Tampa following an automated camera alert? Technical glitches, optical character recognition errors, or database lag can compromise the validity of a stop. Discover how our legal team can help analyze your case details by exploring our background overview.

How License Plate Recognition Systems Function

ALPR technology relies on high-speed, computer-controlled camera systems equipped with optical character recognition (OCR) software. These cameras capture digital images of license plates—known as tag detections—and instantly compare them against automated databases to find matches or “tag alerts”.

To dive deeper into how these systems capture and process data, review the detailed insights at Automatic License Plate Readers ALPR Video. Furthermore, a comprehensive breakdown of technical terms and Florida guidelines can be found at License Plate Recognition Systems.

Core Components of LPRS Technology

Comparative Analysis: Traditional vs. Automated Stops

Frequently Asked Questions (Q&A)

Call Tampa Bay Automatic License Plate Recognition Attorney

Navigating an arrest and the complexities of automated police surveillance and traffic stops requires specialized legal insight. Do not let technology dictate your future without a thorough defense. Get in touch with Tampa expert Casey Ebsary today through our contact page.

Tougher Penalties for Fleeing or Attempting to Elude in Tampa Bay

If you are signaled to pull over by police in the Tampa Bay area, failing to stop immediately can lead to severe felony consequences. Under Florida Statute § 316.1935, the charge of Fleeing or Attempting to Elude a Law Enforcement Officer carries strict penalties that have been significantly enhanced under Florida House Bill 113 (HB 113).

I am Attorney W.F. “Casey” Ebsary Jr. at dui2go.com. My office represents individuals facing high-stakes criminal traffic charges across Hillsborough, Pinellas, Pasco, and throughout Tampa Bay.

Watch My Video Analysis: Florida Statute § 316.1935

In the video breakdown below, I review actual aerial helicopter footage of a Florida pursuit, demonstrating how law enforcement deploys traffic stop sticks and how quickly a traffic stop can escalate into a felony arrest.

• 00:05 – Statute Breakdown: Reviewing charges under Florida Statute § 316.1935 in Tampa Bay.
• 00:26 – Stop Stick Deployment: Law enforcement deploys spikes to deflate tires and stop the fleeing vehicle.
• 01:03 – Pursuit Termination: Demonstrating how loss of tire pressure leads to vehicle instability and collisions.
• 01:58 – Penalties & HB 113: Fleeing charges carry mandatory felony penalties and potential prison exposure in Tampa Bay.

Key Information Regarding Florida Statute § 316.1935

• Name of Charge: Fleeing or Attempting to Elude a Law Enforcement Officer
• Statute: Florida Statute § 316.1935
• Expanded Scope: High speeds are not required for a felony charge. Slow-speed evasion or delaying a stop can still result in felony prosecution.
• Penalties Range:
  • Failure to Stop / Slow-Speed Fleeing: Third-Degree Felony (Up to 5 years prison)
  • High-Speed or Reckless Fleeing: Second-Degree Felony (Up to 15 years prison)
  • Fleeing Causing Serious Bodily Injury or Death: First-Degree Felony (Up to 30 years prison)

Fighting Fleeing Charges in Tampa Bay

Whether your case involved an unmarked police vehicle, poor visibility of emergency lights, or a safety concern, we work to protect your rights across the Tampa Bay area.

To review my credentials and background, visit my About Page. If you or a loved one face charges under Florida Statute § 316.1935, contact us directly on my Contact Page or call (813) 222-2220 to discuss your legal defense.

Tougher Penalties for Fleeing or Attempting to Elude in Tampa Bay, Florida

If a police officer signals you to stop anywhere in the Tampa Bay area, the decisions you make over the next few seconds can have life-changing consequences. A charge of Fleeing or Attempting to Elude a Law Enforcement Officer under Florida Statute § 316.1935 is a serious felony offense that can result in years in prison, a permanent felony record, and significant collateral consequences for your employment, driver’s license, and future.

I am W.F. Casey Ebsary Jr., a Florida Board Certified Criminal Trial Lawyer. At DUI2Go, I represent individuals charged with serious criminal traffic offenses throughout Tampa, Hillsborough County, Pinellas County, Pasco County, Clearwater, St. Petersburg, Brandon, Riverview, Wesley Chapel, New Port Richey, and the surrounding Tampa Bay communities.

In the video, I explain how fleeing and eluding cases develop, review actual pursuit footage, discuss pursuit termination tactics used by law enforcement, and explain the penalties under Florida law.

Watch: Florida Fleeing and Attempting to Elude Penalties Explained

Video Timeline

00:00 – 00:09 | Understanding the Charge

Learn what prosecutors must prove in a Florida fleeing or attempting to elude case and why these felony charges are aggressively prosecuted throughout the Tampa Bay area.

00:10 – 00:23 | How Pursuits Begin

Watch aerial footage showing how what begins as a routine traffic stop can rapidly escalate into a felony pursuit.

00:24 – 00:29 | Felony Consequences

Even without a lengthy chase, a fleeing charge can expose you to significant prison time and a permanent felony conviction.

00:30 – 00:45 | Law Enforcement Pursuit Tactics

See how officers may use tire deflation devices, coordinated vehicle tactics, and aviation support to end a pursuit.

00:46 – 00:54 | Criminal Penalties

I explain the escalating felony penalties under Florida Statute § 316.1935 depending upon the facts of the case.

00:55 – 01:01 | Protect Your Rights

If you have been arrested, speak with an experienced criminal defense lawyer before making statements about the incident.

What Is Florida Statute § 316.1935?

Florida Statute §316.1935 makes it a crime to willfully refuse to stop after being directed to do so by a properly identified law enforcement officer. The offense can quickly become a felony depending upon the circumstances of the encounter.

One of the biggest misconceptions I hear is that police must prove there was a dramatic, high-speed chase. That is simply not always the case.

Prosecutors often allege fleeing when they believe a driver intentionally continued driving after emergency lights or sirens were activated. Whether that allegation is legally supported depends upon the specific facts of each case.

You can review the current statute here:

Florida Statute §316.1935 (Justia):
https://law.justia.com/codes/florida/title-xxiii/chapter-316/section-316-1935/

Potential Criminal Penalties

The severity of punishment depends upon the conduct alleged.

Third-Degree Felony

The least severe felony version generally involves knowingly failing to stop after an officer has ordered a vehicle to stop. Potential penalties include:

• Up to 5 years in Florida State Prison
• Up to 5 years of probation
• Up to a $5,000 fine
• Permanent felony conviction

Second-Degree Felony

If prosecutors allege the vehicle was driven at high speed or with reckless disregard for the safety of others, the charge may be enhanced. Potential penalties include:

• Up to 15 years in prison
• Up to 15 years of probation
• Up to a $10,000 fine

First-Degree Felony

When fleeing allegedly causes serious bodily injury or death, the offense may become a first-degree felony. Potential penalties include:

• Up to 30 years in prison
• Significant mandatory sentencing exposure depending upon the facts
• Permanent felony record

Every Case Is Different

Many people assume that once emergency lights activate, every continued movement automatically equals fleeing. The reality is often much more complicated.

Questions frequently arise regarding:

• Whether the police vehicle was properly marked
• Whether emergency lights or sirens were clearly visible or audible
• Whether traffic conditions prevented an immediate stop
• Whether the driver was attempting to reach a safer, well-lit location
• Whether the driver actually knew law enforcement was attempting to stop the vehicle

These factual issues can become important during the defense of a criminal case.

Common Defenses That May Apply

Every case requires an individual review of the evidence. Depending upon the circumstances, issues that may deserve careful investigation include:

• Identification of the driver
• Dash camera footage
• Body camera recordings
• Aviation video
• GPS evidence
• Timing of emergency light activation
• Visibility conditions
• Witness testimony
• Radio dispatch communications

No single defense applies to every case, and the outcome always depends upon the specific facts and applicable law.

Why Early Representation Matters

The prosecution often relies heavily upon officer observations, pursuit videos, dispatch recordings, and digital evidence. Early investigation may help preserve important evidence before it becomes more difficult to obtain. As a former Florida prosecutor and public defender, I understand how these investigations are conducted and how criminal traffic cases are presented in court.

Serving Clients Throughout Tampa Bay

My office represents clients charged with criminal traffic offenses throughout:

• Tampa
• Brandon
• Riverview
• Plant City
• Clearwater
• Largo
• St. Petersburg
• Pinellas County
• Hillsborough County
• Pasco County
• New Port Richey
• Wesley Chapel
• Temple Terrace
• Safety Harbor
• Oldsmar

Learn More About My Practice

If you would like to learn more about my background, courtroom experience, and qualifications, please visit my About Page:

https://dui2go.com/about

If you or someone you care about has been charged with Fleeing or Attempting to Elude under Florida Statute §316.1935, contact my office as soon as possible to discuss your case.

Contact me here:

https://dui2go.com/contact

• Tampa fleeing and eluding lawyer
• Florida fleeing or attempting to elude attorney
• Florida Statute 316.1935
• felony traffic lawyer Tampa
• Tampa criminal traffic attorney
• Hillsborough fleeing charge lawyer
• Pinellas fleeing defense attorney
• Pasco criminal traffic lawyer

Internal Links

• https://dui2go.com/about/
• https://dui2go.com/contact/
• Florida DUI practice area page
• Criminal Traffic Defense page
• Driver License Suspension page

External Links

• Florida Legislature (Section 316.1935): https://www.leg.state.fl.us/
• Justia Florida Statute §316.1935: https://law.justia.com/codes/florida/title-xxiii/chapter-316/section-316-1935/
• Florida Department of Highway Safety and Motor Vehicles: https://www.flhsmv.gov/

Video: Out-of-State DUI in Florida: What Happens When You Go Home?

Did you know that a DUI charge received while vacationing or traveling on business in Florida can follow you back to your home state? It is a common misconception that legal trouble in Florida stays in Florida. As a Board-Certified Criminal Trial Lawyer here in Tampa, I see it all the time. Clients from all over the country call me, panicked, because they weren’t aware of the long-term consequences an out-of-state DUI could have on their driving privileges at home.

The Reality of the “Driver’s License Compact” Many states, including Florida, are members of the Driver’s License Compact (DLC). This agreement allows states to share information regarding traffic violations and license suspensions. When you are arrested for a DUI in Florida, the Department of Highway Safety and Motor Vehicles (DHSMV) will notify your home state’s licensing agency. If you are convicted or if you lose your driving privileges in Florida, your home state will likely be notified and may impose its own administrative suspension based on the Florida report.

Why You Need a Local Expert I often represent non-residents facing Florida DUI charges. The good news is that for many of my clients, we can handle a significant portion of the process without you having to appear at every single court hearing. However, this depends entirely on the specific charges, the nature of the case, and the courtroom procedures.

When you hire me, I work to manage your case in a way that minimizes your travel burden while maximizing your defense. As a Board-Certified Criminal Trial Lawyer, I understand exactly how the Florida courts operate. I know the nuances of the breathalyzer evidence, the field sobriety tests, and the procedural errors that law enforcement sometimes make. I look for those cracks in the prosecution’s case to fight for a favorable outcome, whether that means a reduction in charges or a dismissal.

Don’t Let a Florida DUI Define Your Future The bad news is that if you ignore the charge, it won’t go away. An out-of-state DUI can severely affect your driving privileges back home, leading to increased insurance premiums, loss of license, and potentially even employment issues if your job requires a clean driving record.

If you or someone you know is dealing with an out-of-state DUI, we can help you navigate the process. You do not have to do this alone. You need a lawyer who understands the complexities of interstate driver’s license issues.

Take Action Today My goal is to take the weight off your shoulders. I handle the legal heavy lifting so you can focus on getting back to your life. If you have been arrested in Tampa, Hillsborough County, or the surrounding Florida areas, contact me at 813-222-2220 to discuss your case.

We can review the specific details of your situation, look at the evidence against you, and build a strategy to protect your rights. You can also learn more about my trial experience by visiting my About Page or reaching out to my office directly via my Contact Page.

Let’s talk about your defense today.

28.1 DRIVING UNDER THE INFLUENCE

§ 316.193(1), Fla. Stat.

To prove the crime of Driving Under the Influence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) drove [or was in actual physical control of] a vehicle.

2. While driving [or in actual physical control of] the vehicle, (defendant)

Give 2a or 2b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.

b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].

Give if applicable. § 316.193(4), Fla. Stat.

If you find the defendant guilty of Driving Under the Influence, you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving [or in actual physical control of] the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the Driving Under the Influence.

§ 316.003, Fla. Stat. Some of these terms have their own statutory definitions, which should be given if necessary.

“Vehicle” is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway [, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks].

§ 316.1934(1), Fla. Stat.

Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Shaw v. State, 783 So. 2d 1097 (Fla. 5th DCA 2001). 

Impaired means diminished in some material respect. 

Give if applicable. The option of “on a vehicle” pertains to vehicles such as motorcycles and bicycles.

Actual physical control of a vehicle means the defendant must be physically in [or on] the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

§ 322.01(2), Fla. Stat.

Alcoholic beverages are considered to be substances of any kind and description which contain alcohol.

(____________) is a controlled substance under Florida law. Ch. 893, Fla. Stat.

(____________) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

Give if appropriate. § 316.1934(2)(a) and (2)(b), Fla. Stat. 

1. If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while driving or in actual physical control of a vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

It is not necessary to instruct on the “prima facie evidence of impairment” in
§ 316.1934(2)(c), Fla. Stat., if the State charged the defendant with driving with a blood or breath-alcohol level of .08 or over. In those cases, if the jury finds that the defendant drove with an unlawful blood or breath-alcohol level, impairment becomes moot. Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001).

Give only if appropriate. State v. Burns, 661 So.2d 842 (Fla. 5th DCA 1995); Kurecka v. State, 67 So.3d 1052 (Fla. 4th DCA 2010).

A person [arrested] [being investigated] for Driving Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test.

Give only if appropriate

A person [arrested] [being investigated] for Driving Under the Influence does not have the right to consult with an attorney before deciding whether to submit to a [breath] [urine] [blood] test. However, if the defense maintains that the defendant mistakenly believed that [he] [she] did have such a right and refused to provide a [breath] [blood] [urine] sample because of that mistaken belief, you may consider that claim, as well as the state’s competing claim that the defendant’s refusal shows that [he] [she] did not want the police to obtain evidence regarding [his] [her] [[breath] [blood] alcohol level] [or] [drug consumption].

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving Under the Influence if at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the other elements of the charge have been proved beyond a reasonable doubt.

*§ 316.193(6)(b), Fla. Stat. and *§ 316.193(6)(c), Fla. Stat.

See Comments regarding issue of whether a jury finding is required. The following instruction is suggested if the judge determines a jury finding required. The State’s allegation of a prior conviction should not be read to the jury, and the trial must be bifurcated if a jury finding is required. Note: BUI and out-of-state DUI/DWI convictions count as prior convictions. See §316.193(6), Fla. Stat.

Now that you have found the defendant guilty of Driving Under the Influence, you must further determine whether the State proved beyond a reasonable doubt that the defendant was previously convicted of [Driving Under the Influence] [(insert qualifying conviction(s))] and that the DUI for which you just found the defendant guilty was committed within [5 years] [10 years] after the date of a prior conviction.

Lesser Included Offense

DRIVING UNDER THE INFLUENCE — 316.193(1)

Comments

*The penalties for DUI are increased if the defendant has one or more prior DUI or otherwise qualifying convictions. Because some of the increased penalties apply only to the recidivism fact of prior conviction(s), it is possible that a jury finding is not required for the existence of those prior conviction(s). Therefore, a jury finding may not be necessary for the increased penalties based on prior conviction(s) in § 316.193(2)(a), Fla. Stat., or in § 316.193(2)(b)2., Fla. Stat.

However, the judge must impose a jail sentence of at least 10 days if the second DUI conviction occurred within 5 years, or of at least 30 days if the third DUI conviction occurred within 10 years, of the date of a prior DUI or otherwise qualifying conviction. Because of Erlinger v. United States, 602 U.S. 821 (2024), the courts may require the jury to find that the “within 5-year” or “within 10-year” requirement has been proven beyond a reasonable doubt in cases where the State is seeking the minimum mandatory jail sentence.

A misdemeanor instruction was adopted in 1981 as part of Standard Jury Instructions in Misdemeanor Cases. In 1992, a similar instruction was adopted for Florida Standard Jury Instructions in Criminal Cases. That instruction was amended in 1995 and 1998; both instructions were merged into a revised instruction in 2000, which was amended in 2009 [6 So. 3d 574], 2016 [192 So. 3d 1190], 2019 [262 So. 3d 59], October 2, 2020, and on December 12, 2025.

What happens to a driver arrested for DUI while asleep (Sleeping DUI Driver) in a lawfully parked car in Florida?

An arrest for DUI is a warrantless seizure, but it must be supported by evidence sufficient to justify the intrusion of a driver’s privacy rights under the Florida Constitution. Driving under influence charges usually arises when the cops see a bad driver on the road. But what happens to a driver arrested for DUI while asleep in a lawfully parked car in Tampa Florida? The answer is complex but simply put: The officer must use the “community caretaking function”, to justify a vehicle intrusion. The officer must claim the interests of the driver’s safety warranted the interaction with the driver.
Source: Hans FLW Supp 2304 (Cir Court Nov 2015).

What happens when a sleeping driver’s DUI arrest is not justified by the “community caretaking function”?

Search and seizure laws apply to DUI investigations in Florida and throughout the United States. The legal term for events surrounding a DWI / Driving under influence is “Detention”. To detain a driver, the officer must have “reasonable suspicion” to bother the driver. Frequently we see cases where the soon-to-be defendant has done the right thing (almost), and pulled over to take a nap in a legal parking space. Where the driver is found asleep, in a lawfully parked vehicle, the cop must have more to justify further investigation.

Cops cannot just open the vehicle door, take the keys from defendant’s hand, and wake up the dozing driver. Cops must try to arouse the driver. Perhaps a simple polite knock on the door or window is necessary. If they just open the door and enter, the detention of the DUI defendant is unlawful. At least one court has ruled that a DWI officer’s conduct was not justified by the “community caretaking function”. This cop never tried to wake the driver, opened the door, and did nothing to “indicate concern for defendant’s safety or to determine if she needed assistance.” The case was thrown out when a Fourth Amendment motion to suppress was granted.

Source: Hans FLW Supp 2304 (Cir Court Nov 2015).

What Happens When A Cop Approaches A Sleeping DUI Driver?

The Facts:

• Deputy approaches the legally parked car
• Makes an approach to vehicle
• The second approach to vehicle
• Deputy parks patrol car behind the suspect
• The driver has GPS on the dash
• DUI cop has a “hunch” driver is DUI
• Arrests driver

The Ruling:

Court found insufficient basis for a DUI investigation.

The Reasons:

One commentator has observed, “Deputy had legitimate reason to pull alongside defendant’s vehicle, which was stopped on roadside at night in isolated location, to conduct wellness check — Fact that deputy shone flashlight into vehicle and told defendant to roll down window did not convert encounter into investigatory stop — Where deputy saw that defendant was alert and conscious and defendant responded to inquiry about his well-being, deputy’s subsequent actions of parking patrol vehicle behind defendant’s vehicle with lights activated and directing defendant to turn off vehicle and provide identification was unlawful investigatory stop — Motion to suppress is granted.” 24 Fla. L. Weekly Supp. 829a

Can a Sleeping Driver be charged with DUI in Florida? Yes but the cop must have a valid reason to initiate contact with the driver. Quotes from a Recent Actual Physical Control Sleeping DUI Driver Court Opinions

Valid Stop For Probable Cause Or Concern For Motoring Public Safety

“In most DUI cases, a traffic stop is made because the officer has probable cause that a traffic infraction has occurred or the officer has a reasonable suspicion of criminal activity. See State v. Wimberly, 988 So. 2d 116 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1856a] and Origi v. State, 912 So. 2d 69 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2302a]. There is also a justifiable reason for a traffic stop if there is “. . . a legitimate concern for the safety of the motoring public [which] can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” State, Dept. of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992).”

A Hunch Is Not Enough For A DUI Investigation

“Once Dep. Woell saw that the Defendant was conscious and able to make a response to his inquiry regarding whether he was all right, even if it was poorly done, there should have been more of an effort to discern if there was truly a concern for the Defendant’s safety before taking the next steps. The Defendant had done nothing illegal. He had pulled off the road in a proper fashion and had not affected other traffic. He was able to roll down his window and respond to the officer, albeit incoherently in the Deputy’s view. There was no visible injury, no blood or vomit. The Defendant was alert and conscious. Tellingly, the Deputy said, while being cross-examined, that he saw (from a decent distance) that the Defendant had bloodshot eyes (the cause of which could be from many reasons) and that he had a hunch the driver was impaired.”

Officer Must Have A Reasonable Suspicion For A DUI Investigation

“[T]he second approach (by parking behind the Defendant, walking up to the driver’s door, and directing him to turn off the car and to provide identification) as not a true welfare check. If he had made more than one inquiry while he was alongside the Defendant, perhaps raised his voice one time to try to get a clearer response, or articulated with more specificity how this particular driver looked to be in some possible distress, this Court’s conclusion may have been different. It would be a slippery slope to give an officer carte blanche to use a well-being concern to get around the need for a reasonable suspicion to justify an investigatory stop.”
“Based on the circumstances and the case law, IT IS ORDERED AND ADJUDGED that the Defendant’s Motion to Suppress is GRANTED.”

Complete Sleeping Driver Actual Physical Control DUI Court Opinion

STATE OF FLORIDA, Plaintiff, vs. ROBERT CODY NANCARROW Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2016-301820-MMDB, Division 80. October 16, 2016. Bryan A. Feigenbaum, Judge. Counsel: Andrew Draper, Assistant State Attorney, for Plaintiff. G. Kipling Miller, Koleilat & Miller, for Defendant.
ORDER GRANTING DEFENDANT’S

MOTION TO SUPPRESS

THIS CAUSE came before the Court on September 14, 2016 for a hearing on Defendant’s Motion to Suppress Evidence pursuant to Rule 3.190 Fla. R. Crim. P.; the Fourth and Fourteenth Amendment of the United States Constitution; and Article 1, Section 12 of the Florida Constitution. The Court, having taken notice of the court file, having listened to the testimony of the witnesses, and having considered the arguments from counsel, makes the following findings upon which it enters this Order:

On the late evening of February 14, 2016, around 11 p.m., Deputy Woell of the Volusia County Sheriff’s Office was driving westbound on the 1800 block of Taylor Road. This is a dark area in unincorporated Volusia County; there are no businesses or private homes alongside the road and there are no streetlights around.

There is a long bend in this stretch of road and as Dep. Woell was following a line of two or three cars near this curve, one car pulled completely off the road and onto the grassy shoulder. There was no other abnormal driving pattern and this maneuver did not affect the other vehicles. There was no testimony that any of the other vehicles had to brake or swerve.

Dep. Woell pulled alongside the stopped car, between the wood line and the passenger side of the car. He did not turn on his police siren or any flashing lights and did not get on a public address system. There was only one occupant, the driver, who turned out to be the Defendant. Dep. Woell said he pulled over out of a concern for the motorist to make sure everything was all right.

According to Dep. Woell, as he looked over at the Defendant, the Defendant was just staring straight ahead. The Deputy thought it unusual that a driver would not acknowledge his presence, seeing as how he was in a marked police car, so he pointed a flashlight into the car. At that time, the Defendant rolled down the passenger’s side window and stared at the police officer. Dep. Woell asked if he was okay and he claimed the Defendant looked down to the passenger’s side floorboard area and said something incoherent. Dep. Woell noted that the Defendant was alert, conscious, and was not slumped over and the Deputy made no mention of seeing any visible injury. On cross-examination, Dep. Woell also testified he saw that the Defendant had bloodshot eyes and that he had a hunch the Defendant might be impaired. He conceded that there were no other signs of impairment.

In order to explain his subsequent actions, Dep. Woell claimed that his original concerns for the driver had not dissipated. Dep. Woell thought, without clearly articulating why, that the Defendant was acting in an abnormal manner. He mentioned several scenarios he had been involved in, including situations where a driver was having a panic attack, an adverse reaction to medication, or a medical emergency such as a stroke, but never linked any prior experience with this particular driver’s behavior.

The Defendant testified that he pulled off the road since he was lost. He was staring at the UPS navigation system set up in the middle of his dashboard when a car pulled alongside him and someone shined a flashlight into his car and yelled for him to roll down his window. Once he complied, he was asked if he was okay and he replied that he was fine. He surmises he did not say it loud enough to be clearly heard.

Dep. Woell decided to put his vehicle in reverse and now park behind the Defendant’s car. He did not put on any takedown or flashing lights, but did turn on rear flashing blue lights to warn other traffic of his presence and they most likely would have been noticeable by the Defendant on this dark road. As the Deputy approached the driver’s side window, the window was already rolled down. Dep. Woell asked the Defendant to turn off his car and to provide his driver’s license, vehicle registration, and proof of insurance. Dep. Woell said he began noticing several signs of impairment including the odor of alcohol, glassy eyes, and slurred speech. The Defendant had a great deal of difficulty in finding his driver’s license. He claimed he could not find his wallet three times before realizing he had his wallet on him.

The Deputy returned to his own vehicle and began running the information, including performing a warrants check. According to the police reports, the first time of contact with the driver was at 11:10 p.m. Having now seen signs of impairment which led him to believe a DUI investigation was appropriate, Dep. Woell called for back-up at 11:28 p.m. The shift supervisor, Sgt. Amendolare, arrived about 10 minutes later, at 11:39 p.m., and the DUI investigation began.

Dep. Woell had the experience and background to have started the DUI investigation on his own, but testified several factors led him to call for assistance for safety reasons: the dark area where the two vehicles were parked and the bend in the road next to where they were located; the lack of a flat surface to conduct field sobriety exercises [FSEs] except for the road itself since the grassy shoulder was sloped downward; the need for another police car to block traffic if they were going to do FSEs at the scene; and the relative size of the Defendant compared to Dep. Woell.

The defense argues that there was an improper seizure along the side of the road first by shining the flashlight into the Defendant’s car and then by parking behind the car and approaching the driver’s side window and making direct commands. Secondly, the defense argues that even if there was a valid stop, there was an unlawful detention given the time between the first contact and when the DUI investigation began, around 28 minutes later.

The State initially argued that the defense did not present evidence to show standing and that they did not meet their initial burden of proof under Florida Rule of Criminal Procedure 3.190 (g)(3) which requires, in a motion to suppress, “. . . the defendant shall present evidence supporting the defendant’s position and the state may offer rebuttal evidence.”

The Court took judicial notice of the court file and the allegations in the motion to suppress to find that there was no search warrant issued in this case. See Fla. Stat. § 90.202(6) (court may take judicial notice of the court file). Once that finding is made, the burden is the on the prosecution to prove the validity of the police’s actions under the Fourth Amendment. See State v. Hinton, 305 So. 2d 804 (4th DCA 1975); State v. Schubert, 23 Fla. L. Weekly Supp. 782a (Fla. 17th Jud. Cir., Broward Co. Ct., Dec. 12, 2015); and State v. Dawkins, Donaldson, et al, 20 Fla. L. Weekly Supp. 170a (Fla. 4th Jud. Cir., Duval Co. Ct., Oct. 23, 2012).

All warrantless searches “are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). The burden is on the State to prove the validity of a search by clear and convincing evidence. State v. Thompson, 72 So. 3d 245 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2236a].

Did Dep. Woell make proper initial contact with the Defendant and, if that was characterized as an encounter, when did that contact change from an encounter to an investigatory stop? Was there a legitimate reason for that change in status at the time it became an investigatory stop?

The Florida Supreme Court described three distinct types of police-citizen contacts and they are often fluid situations. “The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.” Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). The second level is “an investigatory stop.” See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). For a police officer to lawfully detain a citizen, “an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple, Id. at 186. The third level “involves an arrest which must be supported by probable cause that a crime has been or is being committed.” Id.

The fact that Dep. Woell pulled alongside the Defendant’s parked car did not automatically create a traffic stop. See State v. Wimbush, 668 So. 2d 280 (Fla. 2d DCA 1996) [21 Fla. L. Weekly D506b] and State v. Carley, 633 So. 2d 533 (Fla. 2d DCA 1994). He did not use lights or siren and in no manner direct the Defendant to pull over.

In most DUI cases, a traffic stop is made because the officer has probable cause that a traffic infraction has occurred or the officer has a reasonable suspicion of criminal activity. See State v. Wimberly, 988 So. 2d 116 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1856a] and Origi v. State, 912 So. 2d 69 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2302a]. There is also a justifiable reason for a traffic stop if there is “. . . a legitimate concern for the safety of the motoring public [which] can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” State, Dept. of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992).

Moreover, a police officer has a responsibility to make a well-being check if there is a reason to be concerned for the safety of a citizen, whether they are in a car or not. “It is well recognized that police officers may conduct welfare checks and that such checks are considered consensual encounters that do not involve constitutional implications.” Dermio v. State, 112 So. 3d 551, 555 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D776a]. See also Blice v. State, 825 So. 2d 447, 449 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1705a] (“Not knowing whether he was ill, intoxicated, or merely asleep, the officers were duty-bound to investigate and to render assistance if needed. To do otherwise would be a dereliction of their duty.”); Gentles v. State, 50 So. 3d 1192, 1198-9 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2900a] (“In keeping with such community caretaking responsibilities, [an officer] could properly check the defendant’s status and condition to determine whether he needed any assistance or aid. This type of limited contact has been deemed a reasonable and prudent exercise of an officer’s duty to protect the safety of citizens.”, citing to Lightbourne v. State, 438 So. 2d 380, 388 (Fla. 1983)); Greider v. State, 977 So. 2d 789 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D949b]; Vitale v. State, 946 So. 2d 1220, 1221 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D164a] (“[T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid . . . .”, citing to Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); and State v. Sooy, 13 Fla. L. Weekly Supp. 997b (Fla. 7th Jud. Cir., Volusia Cty. Ct., Aug. 3, 2006).

The facts in the instant case, like the fact patterns in Greider, Gentles, and Dermio, show an encounter continuum between an officer and a defendant. Given the time of night and the isolated location where the Defendant pulled off the road, Dep. Woell had a legitimate reason, if not a duty, to pull alongside the Defendant and make sure everything was all right. A wide gamut of reasons from the minor to the serious could be involved when a driver pulls off the road: mechanical problems with the vehicle, a medical emergency, wanting to take or make a phone call or respond to a text, a lost contact lens, or being lost and wanting to get one’s bearings are just a few of the possibilities.

Shining a flashlight into the vehicle or even telling the Defendant to roll down the window did not necessarily convert the initial encounter into an investigatory stop. See Dermio, id; Wimbush, id.; State v. Goodwin, 36 So. 3d 925 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1289b]; Blake v. State, 939 So. 2d 192 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D2510a]; Pacheco v. State, 20 Fla. L. Weekly Supp. 255a (Fla. 17th Jud. Cir. Ct., Nov. 9, 2012); and State v. Evans, 21 Fla. L. Weekly Supp. 451a (Fla. 18th Jud. Cir., Brevard Cty. Ct., Jan. 28, 2014).

Once Dep. Woell saw that the Defendant was conscious and able to make a response to his inquiry regarding whether he was all right, even if it was poorly done, there should have been more of an effort to discern if there was truly a concern for the Defendant’s safety before taking the next steps. The Defendant had done nothing illegal. He had pulled off the road in a proper fashion and had not affected other traffic. He was able to roll down his window and respond to the officer, albeit incoherently in the Deputy’s view. There was no visible injury, no blood or vomit. The Defendant was alert and conscious. Tellingly, the Deputy said, while being cross-examined, that he saw (from a decent distance) that the Defendant had bloodshot eyes (the cause of which could be from many reasons) and that he had a hunch the driver was impaired.

The State relied on Dermio, id., but there are many distinguishing factors that led the Second DCA to find that opening the driver’s door, in that case, did not transform that encounter into a stop. The driver/defendant, in that case, was parked in a bar parking lot at 3:30 a.m. with the engine running and the lights on. The driver appeared to be asleep and was only awakened by the officer’s tapping a flashlight onto the car window. The officer made three distinct attempts to get a coherent response from the driver before taking the further action of opening the door out of a concern for the driver’s safety. As pointed out in Dermio, “. . . the deputy’s concern for Dermio’s safety, in this case, had not yet been alleviated because Dermio continued to be incoherent and ‘out of it’.” [emphasis added] Id. at 556. Dep. Woell, by contrast, had just seen the Defendant driving properly and only made one attempt to check on his welfare. As mentioned earlier, there are a plethora of legitimate reasons why a driver may pull over in the same manner as the Defendant.

In Greider, id., an officer approached a legally parked car that had towels covering both the passenger and driver’s windows of the car, concealing the interior as if they were curtains. The officer had a safety concern and approached the passenger’s side to see the occupant(s). The driver rolled down the passenger’s window and said all was fine. Even though his concern for the occupant’s welfare was dispelled, the officer went around to the driver’s side and ordered the driver to roll down that window. “We do not ignore [the officer’s] testimony that he possessed suspicions regarding the unusual circumstances of the towels covering the windows, even after he had been assured all was well. However, a suspicion, by itself, may reflect well on the officer’s instincts but it does not meet the Fourth Amendment’s requirement of ‘at least reasonable suspicion that the individual seized is engaged in wrongdoing.’ Here, there was no evidence of criminal activity. This event was a second level citizen encounter, an investigatory stop, undertaken without appropriate legal justification.” Greider, id. at 793, citing to Popple at 186. Even if Dep. Woell had not had his welfare concern completely dispelled, there should have been a greater effort made, at least further inquiry, before pulling behind the Defendant’s car, blue warning lights illuminating the dark road, approaching the driver’s window, instructing him to turn off his engine, and making requests for license and registration. Just like the defendant in Greider, the Defendant here would not feel free to disregard the officer’s command, end the encounter, and drive away. The Florida Supreme Court “. . . has consistently held that a person is seized if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart.” Popple, id. at 188, citing to Jacobson v. State, 476 So. 2d 1282 (Fla. 1985).

In Gentles, id., an officer approached a parked car in a closed mall parking lot inhabited by a driver who appeared asleep. The car’s engine was running. The officer awakened the driver and ordered him to turn off the engine. The Fourth DCA found that the officer had not shown a reasonable concern for the driver’s safety before telling him to shut off the car. While the officer had a community caretaker function that could allow him to see if the driver needed any assistance, there has to be a specific concern, as opposed to a generalized concern, for the driver’s safety to allow this encounter to continue with greater intrusion by the officer. Id., at 1199-1200.

Dep. Woell’s testimony causes concern that he made the second approach (by parking behind the Defendant, walking up to the driver’s door, and directing him to turn off the car and to provide identification) as not a true welfare check. If he had made more than one inquiry while he was alongside the Defendant, perhaps raised his voice one time to try to get a clearer response, or articulated with more specificity how this particular driver looked to be in some possible distress, this Court’s conclusion may have been different. It would be a slippery slope to give an officer carte blanche to use a well-being concern to get around the need for a reasonable suspicion to justify an investigatory stop. “. . . [I]nvestigatory stops based solely upon an inarticulable hunch or unparticularized suspicion are invalid.” Keeling v. State, 929 So. 2d 1169 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1569a].

Based on the finding that the second contact between Dep. Woell and the Defendant was an investigatory stop and not an encounter, the issue about the time of the Defendant’s detention on the side of the road before the back-up arrived to begin the DUI investigation is moot.

Based on the circumstances and the case law,

IT IS ORDERED AND ADJUDGED that the Defendant’s Motion to Suppress is GRANTED.

Source: 24 Fla. L. Weekly Supp. 829a

Video: Keys in My Pocket: Can You Get a Florida DUI Without Ever Driving?

This video explains why Florida DUI cases do not always involve a police officer watching someone drive. Instead, some cases focus on whether a person was in actual physical control of a vehicle. Modern technology—including key fobs, push-button ignition systems, and phone-as-key features—has led many drivers to ask how these concepts apply today.

What Does “Actual Physical Control” Mean Under Florida DUI Law?

Florida’s DUI statute prohibits driving or being in actual physical control of a vehicle while impaired or with an unlawful breath or blood alcohol level. That language appears in Florida Statute §316.193, which you can read through the official Florida Legislature and Justia.

Official Florida Legislature:

https://www.leg.state.fl.us

Justia:

https://law.justia.com/codes/florida/title-xxiii/chapter-316/section-316-193

Although the statute uses the phrase “actual physical control,” it does not provide a detailed definition of every factual situation. Florida courts have developed that concept over many years through case law, and the outcome of any particular case depends upon its specific facts.

Why Are So Many People Confused About Key Fobs and Push-Button Vehicles?

Today’s vehicles work very differently than they did twenty years ago. Many cars no longer require inserting a metal key into an ignition. Instead, a driver may carry a wireless key fob, use a push-button start, or even unlock and operate certain vehicles with a smartphone application.

Because of these technological changes, many people wonder whether simply possessing a key fob—or having a phone configured as a digital vehicle key—creates legal risk if they are sitting inside a parked vehicle while impaired. That is an understandable question, but the answer is often more fact-specific than many people expect.

Does Having the Keys in My Pocket Automatically Mean I Am Guilty of DUI?

No.

I cannot honestly tell anyone that merely carrying a key fob automatically establishes guilt under Florida law because every DUI case depends upon its individual facts and the evidence presented in court. Officers, prosecutors, and ultimately the courts evaluate the totality of the circumstances rather than relying upon one fact alone.

If someone tells you there is a simple “yes” or “no” answer that applies to every case, they are oversimplifying an area of law that often requires careful legal analysis.

What If My Vehicle Uses a Phone Instead of a Key?

This is one of the newest questions I receive from prospective clients.

Some manufacturers allow owners to unlock, start, and operate certain vehicles using a smartphone application or digital credential instead of a traditional key. I am not aware of any Florida statute that specifically addresses every possible “phone-as-key” scenario, and I would not speculate beyond what current law clearly provides. If your DUI arrest involves this technology, the facts should be reviewed carefully before drawing legal conclusions.

What Happens if I Am Sleeping Inside My Car?

Many people believe sleeping in a parked vehicle is always a safe alternative to driving after drinking. Unfortunately, Florida DUI cases involving sleeping occupants have been litigated for many years, and whether someone was in actual physical control depends upon the particular facts presented in that case.

Important considerations may include where the vehicle was located, whether it was operable, the person’s location inside the vehicle, and other surrounding circumstances. There is no single fact that automatically determines the outcome in every prosecution.

Does the Engine Have to Be Running?

Not necessarily.

Florida’s DUI statute does not state that the engine must be running before someone can be charged with DUI based upon actual physical control. Whether prosecutors can prove the offense depends upon all of the admissible evidence rather than one isolated circumstance.

Could Police Arrest Me While I Am Parked?

Yes.

Florida officers sometimes investigate individuals found inside legally or illegally parked vehicles. Whether an arrest is ultimately justified depends upon the evidence available to law enforcement and whether prosecutors can later prove the elements of the charged offense beyond a reasonable doubt.

Why Does Modern Vehicle Technology Matter?

Technology changes faster than statutes.

Push-button ignition, remote start systems, digital key cards, Bluetooth credentials, and smartphone-controlled vehicles have changed the way many people interact with their automobiles. These technologies can create factual situations that simply did not exist when many earlier DUI decisions were written.

That is one reason I believe every case deserves an individualized review rather than assumptions based upon internet rumors or outdated advice.

DUI Actual Physical Control Issues

Every case depends upon its own facts. This table is educational only and is not a prediction of how any individual case will be decided.

DUI Investigation Timeline

Why Should I Speak With a DUI Lawyer Early?

The sooner I become involved, the sooner I can begin reviewing police reports, body camera recordings, witness statements, and other available evidence. Early investigation may identify issues that become important later in the case. Waiting too long can sometimes make it more difficult to preserve evidence or investigate witnesses while memories remain fresh.

Why Choose Me to Defend Your DUI Case?

I have spent decades defending individuals accused of DUI throughout the Tampa Bay area. Before entering private practice, I served as a prosecutor, giving me firsthand experience with how DUI cases are investigated and prosecuted.

As a Florida Bar Board Certified Criminal Trial Lawyer, I personally evaluate the evidence in every case and explain your options honestly. I believe every client deserves clear communication, careful preparation, and experienced courtroom representation.

Learn more about me:

https://dui2go.com/about

Frequently Asked Questions

Can I receive a DUI without anyone seeing me drive?

Yes. Florida’s DUI statute refers to driving or being in actual physical control of a vehicle. Whether prosecutors can establish actual physical control depends upon the specific facts and evidence in the individual case.

Does a push-button start change Florida DUI law?

I do not know of any provision in Florida Statute §316.193 that specifically addresses push-button ignition systems. Modern vehicle technology may affect the facts of a case, but legal conclusions should be based upon the evidence and applicable law rather than assumptions.

What if my Tesla or other vehicle uses a phone as the key?

I am not aware of any Florida statute that specifically answers every possible phone-as-key scenario. Because the technology continues to evolve, these cases should be evaluated individually based upon the available evidence and current law.

Should I answer police questions after a DUI investigation?

Every situation is different. Before making important decisions during a criminal investigation, many people choose to consult with an attorney to better understand their legal rights and available options.

Where can I read Florida’s DUI statute?

You can review the current statute through the official Florida Legislature website or through Justia.

Florida Legislature:
https://www.leg.state.fl.us/

Justia:
https://law.justia.com/codes/florida/title-xxiii/chapter-316/section-316-193/

Does having the key fob automatically prove actual physical control?

I cannot say that because Florida DUI cases are decided based upon the totality of the facts and applicable law. Simply focusing on one fact, such as possession of a key fob, may not answer the legal question presented in a particular case.

Should I call a lawyer before my first court date?

I recommend speaking with a qualified DUI attorney as soon as possible after an arrest. Early legal advice can help you understand the process, preserve evidence when appropriate, and begin preparing your defense.

Can actual physical control be challenged?

Yes. Whether the State can prove actual physical control is often a contested issue in DUI litigation. The strength of that challenge depends entirely on the facts, available evidence, and applicable Florida law.

What should I bring to my consultation?

Bring any paperwork you received from law enforcement or the court, including citations, notices, bond paperwork, and any documents relating to your arrest. The more information I can review, the more informed our discussion can be.

How do I contact your office?

You can learn more about me at https://dui2go.com/about/ or contact my office through https://dui2go.com/contact/. You may also call me directly at (813) 222-2220 to schedule a confidential consultation.

Talk With Me About Your Florida DUI Case

If you were arrested for DUI after being found inside a parked vehicle, sleeping in your car, or while carrying a key fob or using a modern push-button or smartphone-based vehicle system, I would be happy to review the facts of your case. Every DUI prosecution is different, and I believe each client deserves an honest evaluation based on the actual evidence—not assumptions.

Call me today at (813) 222-2220.

Learn more about me:
https://dui2go.com/about/

Contact my office:
https://dui2go.com/contact/

Title

Florida DUI Actual Physical Control Lawyer | Keys in My Pocket | Tampa DUI Attorney

Description

Can you get a Florida DUI without driving? Learn how actual physical control, key fobs, push-button ignition, and phone-as-key technology may affect DUI cases. Former prosecutor and Board Certified DUI lawyer W.F. Casey Ebsary Jr.

Understanding DUI Convictions in Florida: A Comprehensive Guide to the Florida Driver License Handbook

Florida Drivers Handbook

Here is a fair use summary of the Florida Driver License Handbook references to DUI charges in Florida. The official manuals can be downloaded for free from the official state website in English and in Spanish

Driving Under the Influence (DUI) is a serious offense that can have significant consequences for individuals in Florida. If you find yourself convicted of DUI, it’s crucial to understand the legal implications and requirements imposed by the state. One of the key aspects of a DUI conviction is the mandatory insurance coverage that must be in place for a specified period. In this guide, we will delve into the details of DUI convictions, the required insurance coverage, and the associated penalties. We have written bookks on DUI Defense. Onebook from 2026 is called A Florida Lawyer’s Guide to Beating the DUI Odds. The original book from 2016 is called #DUI: The People’s Guide to Fighting Like an Expert.

The Three-Year Higher Coverage Requirement

When you are convicted of Driving Under the Influence (DUI) in Florida, specific insurance coverage becomes mandatory. The coverage must be at least $100,000 Bodily Injury Liability (BIL) for injuries to one person, $300,000 BIL for injuries to two or more people, and $50,000 Property Damage Liability (PDL). This heightened coverage is mandatory for three years following your DUI conviction. It’s important to note that these higher limits will only apply if you refrain from another DUI or any felony traffic offense during the three-year period. Source: Florida Driver License Handbook

Understanding DUI in Florida | Florida Driver License Handbook

Definition and Conditions

Driving Under the Influence (DUI) charges in Florida can be incurred if an individual is found operating or in physical control of a motor vehicle while under the influence of alcoholic beverages, controlled substances, prescriptions, or over-the-counter medications.

Implied Consent Law

Florida operates under an Implied Consent Law, requiring individuals to take a blood, urine, or breath test if a law enforcement officer has reasonable cause to believe they are under the influence. Refusal to comply with these tests results in an automatic one-year license suspension, with subsequent refusals leading to extended suspensions and legal consequences.

Penalties for DUI

First DUI Conviction

• Fine: $500-$1,000 (higher if BAL .15 or higher or a minor is in the vehicle).
• Community Service: 50 hours.
• Probation: Up to 1 year.
• Imprisonment: Up to 6 months (increased to 9 months if BAL .15 or higher or a minor is in the vehicle).
• License Revocation: Minimum 180 days.
• DUI School: 12 hours.
• Evaluation for addiction treatment.
• Ignition Interlock Device: If court-ordered, especially for higher BAL or if a minor is present.

Second DUI Offense/Conviction

• Fine: $1,000-$2,000 (higher if BAL .15 or higher or a minor is in the vehicle).
• Imprisonment: Up to 9 months.
• License Revocation: Minimum 180 days.
• DUI School: 21 hours.
• Evaluation for addiction treatment.
• Ignition Interlock Device: At least one continuous year.

Third DUI Offense/Conviction

• Fine: $2,000-$5,000 (higher if BAL .15 or higher or a minor is in the vehicle).
• Imprisonment: Up to 12 months.
• License Revocation: Minimum 180 days.
• DUI School: 21 hours.
• Evaluation for addiction treatment.
• Ignition Interlock Device: At least two continuous years.

Administrative Hearings and License Reinstatement

If your driving privilege is suspended or revoked, you may be eligible to apply for a hardship license or reinstatement. Administrative hearings play a crucial role in determining eligibility for these options. If you wish to appeal a suspension related to alcohol levels, it’s imperative to apply for a formal or informal review hearing within 10 days of arrest. Source: Florida Driver License Handbook

Restricted Driver License

First-time DUI offenders who have no prior DUI-related offenses may be eligible to request a review for a restricted driver license. This option involves appearing at a Bureau of Administrative Reviews (BAR) office within 10 days of the DUI arrest, electing the waiver review option, and paying a non-refundable fee.

Licensed DUI Programs

Individuals facing an administrative suspension for unlawful blood or breath alcohol levels, refusal to submit to tests, or DUI convictions may be required to complete a licensed DUI program. These programs aim to address issues related to alcohol or substance abuse.

In conclusion, navigating the legal landscape of DUI convictions in Florida involves understanding the specific requirements, penalties, and potential pathways for reinstating driving privileges. Seeking legal advice and promptly addressing administrative procedures can significantly impact the outcome of a DUI case.

Entendiendo las Condenas por DUI en Florida: Una Guía Integral del Manual de Licencia de Conducir de Florida

Manual del Conductor de Florida

Aquí tienes un resumen de las referencias del manual sobre cargos de DUI en Florida.

Conducción Bajo la Influencia (DUI) es una ofensa grave que puede tener consecuencias significativas para los individuos en Florida. Si te encuentras condenado por DUI, es crucial entender las implicaciones legales y los requisitos impuestos por el estado. Uno de los aspectos clave de una condena por DUI es la cobertura de seguro obligatoria que debe estar en vigencia por un período específico. En esta guía, exploraremos los detalles de las condenas por DUI, la cobertura de seguro requerida y las penalizaciones asociadas.

Requisito de Cobertura Superior por Tres Años

Cuando eres condenado por Conducción Bajo la Influencia (DUI) en Florida, se vuelve obligatoria una cobertura de seguro específica. La cobertura debe ser de al menos $100,000 por lesiones corporales a una persona, $300,000 por lesiones corporales a dos o más personas y $50,000 por daños a la propiedad. Esta cobertura elevada es obligatoria durante tres años después de tu condena por DUI. Es importante tener en cuenta que estos límites superiores solo aplicarán si te abstienes de cometer otro DUI o cualquier delito grave de tráfico durante ese período de tres años.

Entendiendo el DUI en Florida

Definición y Condiciones

Los cargos por Conducción Bajo la Influencia (DUI) en Florida pueden ser imputados si se encuentra a una persona operando o teniendo control físico de un vehículo motorizado bajo la influencia de bebidas alcohólicas, sustancias controladas, recetas médicas o medicamentos de venta libre.

Ley de Consentimiento Implícito

Florida opera bajo una Ley de Consentimiento Implícito, que requiere que las personas se sometan a una prueba de sangre, orina o aliento si un oficial de policía tiene causa razonable para creer que están bajo la influencia. La negativa a cumplir con estas pruebas resulta en una suspensión automática de la licencia por un año, con negativas subsiguientes llevando a suspensiones prolongadas y consecuencias legales.

Penalizaciones por DUI

Primera Condena por DUI

• Multa: $500-$1,000 (mayor si el nivel de alcohol en sangre es .15 o superior o hay un menor en el vehículo).
• Servicio Comunitario: 50 horas.
• Libertad Condicional: Hasta 1 año.
• Encarcelamiento: Hasta 6 meses (aumenta a 9 meses si el nivel de alcohol en sangre es .15 o superior o hay un menor en el vehículo).
• Revocación de Licencia: Mínimo 180 días.
• Escuela de DUI: 12 horas.
• Evaluación para tratamiento de adicciones.
• Dispositivo de Interbloqueo de Encendido: Si se ordena por el tribunal (especialmente para niveles de alcohol en sangre más altos o si hay un menor presente).

Segunda Ofensa/Condena por DUI

• Multa: $1,000-$2,000 (mayor si el nivel de alcohol en sangre es .15 o superior o hay un menor en el vehículo).
• Encarcelamiento: Hasta 9 meses.
• Revocación de Licencia: Mínimo 180 días.
• Escuela de DUI: 21 horas.
• Evaluación para tratamiento de adicciones.
• Dispositivo de Interbloqueo de Encendido: Al menos un año continuo.

Tercera Ofensa/Condena por DUI

• Multa: $2,000-$5,000 (mayor si el nivel de alcohol en sangre es .15 o superior o hay un menor en el vehículo).
• Encarcelamiento: Hasta 12 meses.
• Revocación de Licencia: Mínimo 180 días.
• Escuela de DUI: 21 horas.
• Evaluación para tratamiento de adicciones.
• Dispositivo de Interbloqueo de Encendido: Al menos dos años continuos.

Audiencias Administrativas y Restitución de Licencia

Si tu privilegio de conducir es suspendido o revocado, podrías ser elegible para solicitar una licencia de dificultades o restitución. Las audiencias administrativas desempeñan un papel crucial para determinar la elegibilidad para estas opciones. Si deseas apelar una suspensión relacionada con niveles de alcohol, es imperativo solicitar una audiencia de revisión formal o informal dentro de los 10 días posteriores al arresto.

Licencia de Conductor Restringida

Los infractores por DUI por primera vez que no tienen infracciones previas relacionadas con DUI pueden ser elegibles para solicitar una revisión para obtener una licencia de conductor restringida. Esta opción implica presentarse en una oficina de la Oficina de Revisiones Administrativas (BAR, por sus siglas en inglés) dentro de los 10 días del arresto por DUI, elegir la opción de revisión por renuncia y pagar una tarifa no reembolsable.

Programas de DUI con Licencia

Las personas que enfrentan una suspensión administrativa por niveles ilegales de alcohol o aliento, la negativa a someterse a pruebas o condenas por DUI pueden estar obligadas a completar un programa de DUI con licencia. Estos programas buscan abordar problemas relacionados con el abuso de alcohol o sustancias.

En conclusión, navegar el panorama legal de las condenas por DUI en Florida implica comprender los requisitos específicos, las penalizaciones y las posibles vías para restablecer los privilegios de conducción. Buscar asesoramiento legal y abordar rápidamente los procedimientos administrativos puede tener un impacto significativo en el resultado de un caso de DUI.

Spanish Florida Driver License Handbook

MANUAL OFICIAL PAR A LICENCIAS DE CONDUCIR DE FLORIDA

Florida DUI Book

FLORIDA DUI BOOK – THE 10-DAY COUNTDOWN

If you have been arrested for DUI in Florida, the most important fact you need to know is this: you have 10 days to act. 10 years ago I wrote a DUI Defense Book. Now, in The 10-Day Countdown, I break down exactly how to defend a Florida DUI case from the moment the handcuffs come off to the courtroom battle that follows. As a Board Certified Criminal Trial Lawyer and founder of https://dui2go.com/, I have built my career on challenging DUI stops, breath test procedures, refusal allegations, and administrative suspensions under Florida law.

You can review my professional credentials through my Florida Bar profile at https://www.floridabar.org/ and legal directory listings such as Justia and Avvo, where my DUI defense work is detailed and publicly accessible. This book is not theory. It is strategy. It is built on decades of litigation experience, sworn officer cross-examinations, Intoxilyzer challenges, and constitutional motions to suppress. If you are searching for a Florida DUI lawyer who understands the science, the statutes, and the courtroom psychology behind these cases, this book is your starting point. The clock is real. The defense is deliberate. And the first move is yours.

A Florida Lawyer’s Guide to Beating the DUI Odds

By W.F. Casey Ebsary

Board Certified Criminal Trial Lawyer

Introduction: A Word from the Author of the Florida DUI Book

To My Future Client,

If you are holding this Florida DUI Book, you are likely going through one of the most stressful periods of your life. I know the feeling. The prosecution wants you to believe that your case is an open-and-shut matter of “numbers” and “police reports.” I am here to tell you that they are wrong.

As a Board Certified Criminal Trial Lawyer, I’ve spent my career finding the cracks in their “perfect” cases. Whether it’s a breathalyzer machine that hasn’t been calibrated, an officer who skipped a step in a roadside exercise, or a stop that violated your Constitutional rights, there is always a path forward.

At my firm, dui2go, we don’t just “process” cases; we deconstruct them. We use the same intensity I bring to my cycling trips—focus, endurance, and a refusal to quit—to fight for your driver’s license and your reputation. In this book, I’ve laid out 100 of the most critical questions I’ve answered over the decades. We are in this together. Let’s get to work.

Sincerely,

W.F. Casey Ebsary

Attorney at Law

dui2go.com

About the Florida DUI Book Author

When I am not in the courtroom at the Edgecomb Courthouse or reviewing body-cam footage at my office on West Cleveland Street, you can almost always find me on two wheels. As a dedicated cyclist, I spend a great deal of my time on the Pinellas Trail. Whether I’m navigating a long endurance ride or heading out on one of my e-bikes, cycling is more than just a hobby for me—it is a philosophy.

In cycling, there is a concept called “The Line.” It is the most efficient, safest path through a difficult curve. Finding that line requires focus, a deep understanding of your surroundings, and the technical skill to stay upright when the road gets rough.

I bring that same mindset to my legal practice.

Defending a DUI is an endurance sport. It requires a meticulous eye for detail—much like checking your tire pressure and gear ratios before a century ride. Just as a cyclist must be aware of every pothole and blind spot, a Board Certified Criminal Trial Lawyer must be aware of every procedural error and constitutional violation in a police report.

Living in Seminole and working in Tampa, I see the beauty of our community every day. But I also see how quickly a single interaction with law enforcement can derail a person’s life. When I take on your case, I am looking for “The Line”—the strategic path that leads to the best possible outcome for your future.

Whether I am white-water rafting in California or fighting a high-stakes felony charge in a Florida courtroom, I believe in preparation, momentum, and the refusal to coast. When you hire me, you aren’t just getting a lawyer; you are getting a teammate who understands that the only way to finish strong is to start with a plan.

I’ll see you on the trail—and I’ll see you in court.

W.F. Casey Ebsary Attorney, Cyclist, Advocate

Table of Contents

THE 10-DAY COUNTDOWN
A Florida Lawyer’s Guide to Beating the DUI Odds 1
By W.F. Casey Ebsary 1
PART I: THE DEFENSE FOUNDATION 6
Introduction: A Word from the Author 6
Chapter 1: The Critical 10-Day Window 7
Why the 10 Days Matter 7
The Moment the Clock Starts 8
The 10-Day Strategy Table 9
What I Do Immediately in a DUI Case 9
First, I File the Formal Review Request 9
Second, I Subpoena the Arresting Officer 10
Administrative vs. Criminal: Two Separate Battles 10
Chart: What Happens If You Miss the 10-Day Deadline 11
The Strategic Value of the Formal Review Hearing 11
Flow Chart: The First 30 Days After Arrest 12
What If You Already Missed the Deadline? 12
Frequently Asked Questions About the 10-Day Window 13
Does requesting the Formal Review guarantee I keep my license? 13
What is the difference between a Formal Review and a Waiver Review? 13
Can I get a hardship license if I request a Formal Review? 13
What happens if the officer does not appear? 13
Embedded Video Resource 14
My Philosophy on the First 10 Days 14
Final Thoughts: The Clock Is Real 15
Chapter 2: The Anatomy of a Stop 16
Why Every Florida DUI Case Begins With One Question: Why Were You Stopped? 16
The Constitutional Foundation: Reasonable Suspicion 16
“Driving or Actual Physical Control” 17
The Stop Comes First 18
Pretextual Stops: Fishing Expeditions 18
Chart: Common DUI Stop Justifications 19
The “Failure to Maintain Lane” Myth 20
Anonymous Tips and DUI Stops 20
Flow Chart: From Stop to Arrest 21
The Expansion of the Stop 21
Bodycam and Dashcam: The Silent Witness 22
Actual Physical Control: Parked Vehicle Cases 22
Frequently Asked Questions About DUI Stops 23
Can police stop me just because it is late at night? 23
If I admit I had a drink, does that justify the stop? 23
What if I turned from a closed bar parking lot? 23
Can a minor equipment issue justify a stop? 23
The Motion to Suppress 23
My Approach to DUI Stops 24
Final Thoughts: Every DUI Case Begins With a Flashing Light 25
Chapter 3: Accidents and the “Switching Hats” Rule 26
When a Crash Investigation Turns Into a Criminal DUI Case 26
Why Accident Cases Are Different 26
The Accident Report Privilege: Our Shield 27
The “Switching Hats” Moment 28
Table: Crash Investigation vs. Criminal Investigation 28
How This Plays Out in Real Cases 29
The Miranda Component 29
Chart: Common Suppression Arguments in Accident DUIs 30
The Compelled Statement Problem 31
Accident Cases and DUI2Go Strategy 31
Flow Chart: Accident DUI Timeline 32
Frequently Asked Questions About Accident DUIs 32
If I admit drinking during a crash investigation, is that automatically admissible? 32
What counts as a “hat switch”? 32
Do Miranda rights apply at every crash scene? 33
What if the officer never clearly switched roles? 33
Video Resources and Further Reading 33
Why This Chapter Matters 33
Final Thoughts: Timing Is Everything 34
PART II: THE SCIENCE AND THE COURTROOM 35
Chapter 4: The Truth About the Blow 35
What the Intoxilyzer 8000 Doesn’t Tell the Jury 35
The Machine Behind the Number 36
The Breath-Test Vulnerability Table 36
Mouth Alcohol: The Hidden Contaminant 37
The Partition Ratio Problem 38
The 20-Minute Rule 39
Maintenance Logs: The Paper Trail 39
Chart: How I Audit a Breath Case 40
Duplicate Sample Requirement 40
Medical Conditions and Breath Testing 41
Flow Chart: From Arrest to Breath Result 41
Frequently Asked Questions About Breath Testing 42
If I blew over .08, is the case hopeless? 42
Can maintenance issues really invalidate a test? 42
What if I have GERD? 42
Does refusing the test avoid these issues? 42
The Psychological Impact of the Number 42
My Approach to Breath Cases 43
Final Thoughts: The Machine Is Not the Judge 44
Chapter 5: The Truth About Refusal 45
Why Saying “No” Is Not the End of the Case 45
What the Officer Must Prove in a Refusal Case 45
Administrative Consequences of Refusal 46
The Refusal Warning: What Must Be Said 47
Table: Refusal Case Vulnerabilities 48
Was It Really a Refusal? 48
The Strategic Reality of Refusal 49
The Criminal Refusal Charge (Second Refusal) 50
Flow Chart: Refusal Case Timeline 50
The Jury Instruction Problem 50
Frequently Asked Questions About Refusal 51
Is refusal worse than blowing over .08? 51
Can I change my mind after refusing? 51
Does asking for an attorney count as refusal? 51
Can medical issues justify refusal? 51
My Perspective on Refusal Cases 52
Final Thoughts: Refusal Is Not the End 52
Chapter 6: High Stakes—CDL and Professional Licenses 54
PART III: THE 100 QUESTIONS & ANSWERS 55
PART IV: FINAL RESOURCES 81
Glossary of Terms 81
About the Author 82
APPENDIX: THE EMERGENCY CHECKLIST 83
THE DISCIPLINE OF THE DEFENSE: AN AUTHOR’S NOTE 84

Florida DUI Book 2026 Defense Manual

YouTube Video
Title: Florida E-Bike Laws Explained by Tampa Attorney Casey Ebsary

Florida E-Bike Laws: Frequently Asked Questions

Electric bicycles have become increasingly popular throughout Tampa Bay and across Florida. I regularly receive questions from clients who want to know whether an e-bike is treated like a bicycle, whether they need a driver’s license, and what happens if they are stopped by law enforcement.

Florida has enacted specific laws governing electric bicycles. While many of the rules are straightforward, local governments may adopt additional restrictions regarding where e-bikes may be operated. Understanding both state law and local ordinances is important before you ride.

If you have questions about an arrest, criminal investigation, or traffic-related legal issue involving an electric bicycle, I invite you to learn more about me at https://dui2go.com/about/ or contact me directly at https://dui2go.com/contact/.

Florida E-Bike Requirements at a Glance

⚠️ Important Reminder: These exemptions apply strictly to recognized Class 1, 2, and 3 e-bikes. High-speed electric dirt bikes or uncertified off-road electric vehicles do not qualify for these exemptions and are not street-legal on public roads or sidewalks.

More Frequently Asked Questions

Official Resources

Florida Legislature (Electric Bicycle Regulations): https://www.flsenate.gov/Laws/Statutes/2025/316.20655
Florida Statute on Justia: https://law.justia.com/codes/florida/title-xxiii/chapter-316/section-316-20655/
Learn more about attorney W.F. Casey Ebsary Jr.: https://dui2go.com/about/
Contact Casey the Lawyer: https://dui2go.com/contact/

Street Racing Lawyer Needed? When Tampa and St. Petersburg law enforcement throw the checkered flag on a street race, don’t make your next stop in court alone. Police are cracking down—not just on racers, but on spectators too. If you were at the scene on Fourth Street N, Courtney Campbell Parkway, or Gandy Boulevard, you may already be a target.

By W.F. Casey Ebsary Jr.
Tampa • St. Petersburg • Hillsborough • Pinellas

Make Your Next Pit Stop Here – Contact Us

When the cops throw the checkered flag, call W.F. “Casey” Ebsary, Jr. at (813) 222-2220 or visit our Contact Page to schedule a consultation. You need a strong legal defense—don’t wait until it’s too late.

Street Racing in Tampa: What You Need to Know

Street racing is not just illegal for those behind the wheel—spectators face penalties too. According to recent crackdowns, officers are:

• Videotaping license plates
• Mailing tickets days after events
• Charging bystanders with aiding/abetting racing
• Issuing DUI arrests and reckless driving charges

If you received a street racing ticket or were arrested, you need to act fast.

Under Florida Statute § 316.191, illegal street racing, stunt driving, and street takeovers carry severe criminal penalties and mandatory administrative consequences that scale based on prior offenses. Passive spectators are also subject to steep fines and license penalties.

Statutory Penalty Summary

• 1st Offense (Driver/Organizer): First-Degree Misdemeanor. Carries a mandatory fine between $500 and $2,000, an automatic 1-year driver’s license revocation, and a 30-day vehicle impoundment.
• 2nd Offense (Within 1 Year): Third-Degree Felony. Carries a mandatory fine between $2,500 and $4,000, a 2-year mandatory license revocation, and vehicle forfeiture eligibility.
• 3rd Offense (Within 5 Years): Second-Degree Felony. Carries a mandatory fine between $3,500 and $7,500, a 4-year license revocation, and vehicle forfeiture eligibility.
• Spectator (Any Offense): Noncriminal Traffic Infraction. Subject to a flat $400 fine and an assessment of 3 points against the driver’s license.

The interactive legal simulator below maps these statutory variables to calculate the specific fine tier, charge classification, and administrative vehicle impacts based on user input.

F.S. 316.191 Street Racing Calculator

Violation Role

Driver / Organizer Offense History 1st Offense 2nd Offense (Within 1 Year) 3rd or Subsequent Offense (Within 5 Years)

Legal Classification:-

Statutory Fine Range:-

Driver’s License Action:-

Vehicle Action:-

Top 5 Things to Know If You Were at a Street Racing Event

Florida Street Racing Law

Under Florida Statutes § 316.191, it is illegal to:

• Participate in any drag racing or speed competition
• Coordinate or facilitate such events
• Even be present as a spectator at an illegal street race

Penalties include:

• Up to $1,000 in fines
• Vehicle impoundment or forfeiture
• License suspension
• Criminal misdemeanor charges

View the full statute at Justia: Florida § 316.191

Top 5 Defenses for Street Racing or Spectator Tickets

• Lack of Evidence – No proof you were actively involved
• Mistaken Identity – Misread license plate or vehicle confusion
• Constitutional Defenses – Illegal stop, search, or seizure
• Improper Ticket Procedures – Flawed or late ticket delivery
• No Racing Took Place – Mere presence is not always enough

Frequently Asked Questions (FAQ)

Call Board Certified Criminal Trial Lawyer W.F. Casey Ebsary Jr.

If police targeted you at a Tampa or St. Petersburg street racing event, don’t risk your future. Contact a Board Certified Criminal Trial Lawyer who knows Florida traffic law inside and out.

📞 Call Today: 813-222-2220
📍 Serving Hillsborough, Pinellas, and surrounding counties
🌐 DUI2Go.com

Make Your Next Pit Stop Here – Contact Us

When the cops throw the checkered flag, call W.F. “Casey” Ebsary, Jr. at (813) 222-2220 or visit our Contact Page to schedule a consultation. You need a strong Street Racing Lawyer — don’t wait until it’s too late.

2009 Post Updated to 2025

Tampa Traffic Attorney notes that area cops cracked down on street racers and fans along Fourth Street N. Everyone began a dash for their cars when cops came down the I-275 interstate ramp. Cops blocked off the street to prevent escaping to I-275 or Gandy Blvd. Another target for traffic law enforcement is the Courtney Campbell Parkway.

The stretch of Fourth from I-275 to the Inlet Bay at Gateway apartment complex is flat and straight, four lanes surrounded by nothing but grass and water.

Earlier officers have arrested four people on misdemeanor racing charges. Cops videotaped license plates of racers and fans alike. A few days later, 130 drivers got $30 parking tickets in the mail. It’s now clear that fans are targets too. A $151 ticket and three points can be placed against a driver’s license. According to the media, the last ticket was written at 4:40 a.m. 31/2 hours, 221 citations, and a DUI arrest.

Photo Gallery is Here.

Complete Story is Here.
When the cops throw the checkered flag at a street race, make your next pit stop with Board Certified Criminal Trial Lawyer W.F. ”Casey Ebsary, Jr. Toll Free -1-877-793-9290 .

St Petersburg Traffic Attorney