DUI vs DWI in Florida: The Complete Defense Guide for 2026

If you're reading this, you or someone you care about is probably facing a DUI charge in Florida. Maybe you searched for "DWI attorney near me" or "drunk driving lawyer Orlando." Here's the first thing you need to know: Florida does not have DWI charges. Every impaired driving offense in our state is charged as DUI.

As a former Florida Highway Patrol Trooper who spent years on a DUI enforcement unit, I know exactly how these cases are built from the inside. Now, as a criminal defense attorney, I use that knowledge to protect your rights and fight for the best possible outcome.

DUI vs DWI: What's the Difference in Florida?

In some states, DUI and DWI are different charges with different penalties. Some states use DWI (Driving While Intoxicated) for alcohol impairment and DUI for drug impairment. Others use them interchangeably.

Florida keeps it simple: there is only DUI. Under Florida Statute 316.193, you can be charged with DUI if you are driving or in actual physical control of a vehicle while:

• Under the influence of alcohol to the extent your normal faculties are impaired, OR
• Under the influence of a controlled substance to the extent your normal faculties are impaired, OR
• Your blood alcohol level (BAC) is 0.08% or higher

This means you can be charged with DUI even if your BAC is below 0.08%, as long as the officer believes your "normal faculties" were impaired. This is a critical distinction that many people don't understand until it's too late.

Florida BAC Limits: Know Your Numbers

Understanding Florida's BAC thresholds is essential for anyone charged with DUI:

First DUI Penalties in Florida

A first DUI in Florida is typically a misdemeanor, but the penalties are serious:

• Jail: Up to 6 months (up to 9 months if BAC was 0.15% or higher, or if a minor was in the vehicle)
• Fines: $500-$1,000 ($1,000-$2,000 for enhanced)
• Probation: Up to 1 year
• Community service: 50 hours minimum
• Vehicle impoundment: 10 days
• License suspension: 180 days to 1 year
• DUI school: Mandatory completion
• Ignition interlock: Required if BAC was 0.15% or higher

But the official penalties are just the beginning. A DUI conviction can affect your employment, professional licenses, insurance rates, and even your ability to rent an apartment. That's why fighting the charge matters.

The Three Phases of a DUI Investigation

Having spent years conducting DUI investigations, I can tell you that every case follows a similar pattern. Understanding these phases helps identify where the officer may have made mistakes:

Phase 1: Vehicle in Motion

The officer observes your driving behavior. Common "cues" include weaving, lane departure, or failing to maintain speed. But many of these observations are subjective and can be challenged. Was the lane marking faded? Was there construction? Did you have a legitimate reason to change lanes?

Phase 2: Personal Contact

This is when the officer approaches your window and looks for signs of impairment: odor of alcohol, slurred speech, bloodshot eyes. These observations are documented but are often exaggerated or based on assumptions. Medical conditions, allergies, and fatigue can all mimic signs of impairment.

Phase 3: Pre-Arrest Screening

This includes the Standardized Field Sobriety Tests (SFSTs): Horizontal Gaze Nystagmus (HGN), Walk-and-Turn, and One-Leg Stand. Officers are trained to administer these tests in a specific way. When they deviate from the standard protocol, the results can be challenged.

For a deeper dive into how we challenge the HGN eye test specifically, read our article on Challenging the HGN Eye Test in Florida DUI Cases.

The New Florida DUI Refusal Law

As of October 1, 2025, refusing a lawful breath, blood, or urine test is now a criminal offense in Florida. This is a major change to Florida's implied consent law.

Previously, refusal only resulted in automatic license suspension (1 year for first refusal, 18 months for subsequent). Now, refusal is also a first-degree misdemeanor, punishable by up to 1 year in jail.

This doesn't mean you have no rights during a DUI stop. Field sobriety tests are still voluntary. But the consequences of refusing the chemical test at the station have gotten significantly worse.

Read our complete breakdown of Florida's New DUI Refusal Law to understand your rights and options.

Common DUI Defense Strategies

Every DUI case is different, but here are the defense strategies we most commonly use:

Challenging the Traffic Stop

If the officer didn't have reasonable suspicion to pull you over, everything that followed may be inadmissible. We review dashcam footage and police reports to identify unlawful stops.

Questioning Field Sobriety Tests

SFSTs must be administered according to NHTSA standards. Officers often deviate from proper procedures, conduct tests on uneven surfaces, or fail to account for medical conditions. When the tests weren't done right, the results shouldn't be used against you.

Attacking Breath Test Results

Florida uses the Intoxilyzer 8000 for breath testing. These machines require regular maintenance and calibration. Operator error, machine malfunction, and improper observation periods can all affect accuracy. Learn more about the history and reliability issues with Florida's breath testing program.

Rising Blood Alcohol Defense

Alcohol takes time to absorb. If you were stopped shortly after your last drink, your BAC may have been below the legal limit while driving but rose above 0.08% by the time you took the breath test at the station.

Medical Conditions

Conditions like diabetes, GERD (acid reflux), and certain medications can affect breath test results or mimic signs of impairment. These factors must be considered in your defense.

What to Do After a Florida DUI Arrest

If you've been arrested for DUI in Florida, time is critical:

1. Contact a DUI attorney immediately. You only have 10 days to request a formal review hearing to fight your license suspension.
2. Don't discuss your case on social media or with anyone except your attorney.
3. Write down everything you remember about the stop, the tests, and the arrest while it's fresh.
4. Gather any evidence that might help: witness contact information, photos of the location, medical records if relevant.
5. Attend all court dates and follow your attorney's guidance.

Why Choose Lotter Law for DUI Defense?

When you're facing a DUI charge in Orlando or Central Florida, you need an attorney who understands both sides of the courtroom. Here's what sets us apart:

• 18 years of law enforcement experience, including DUI enforcement
• 10 years as a criminal defense attorney fighting for clients just like you
• Data-driven approach: We analyze thousands of local cases to identify patterns and build stronger defenses
• Insider knowledge of how DUI investigations should be conducted and where officers make mistakes
• Free consultations to discuss your case and understand your options

A DUI charge doesn't have to define your future. With the right defense, we can fight for reduced charges, case dismissal, or acquittal at trial.

Frequently Asked Questions

Is there a difference between DUI and DWI in Florida?

No. Florida does not have a DWI charge. All impaired driving offenses in Florida are charged as DUI (Driving Under the Influence) under Florida Statute 316.193. If you're searching for DWI defense in Florida, you're looking for a DUI defense attorney.

What is the legal BAC limit in Florida?

The legal BAC limit in Florida is 0.08% for drivers 21 and older, 0.02% for drivers under 21, and 0.04% for commercial vehicle operators. However, you can still be charged with DUI even if your BAC is below 0.08% if the officer believes your normal faculties are impaired.

Can I refuse a breathalyzer test in Florida?

You have the right to refuse, but there are serious consequences. First refusal results in automatic 1-year license suspension. As of October 2025, refusing a lawful breath, blood, or urine test is now also a first-degree misdemeanor criminal offense, punishable by up to 1 year in jail.

Will a DUI stay on my record forever?

If convicted, yes. Florida does not allow DUI convictions to be expunged or sealed. However, if your charges are dropped, reduced to a non-DUI offense, or you're found not guilty, you may be eligible to seal or expunge your arrest record.