It's Perfectly Legal To Refuse Roadside Sobriety Tests
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Florida's New DUI Refusal Law: Criminal Penalties Starting October 2025
Starting October 1, 2025, refusing a chemical test after a DUI arrest in Florida is now a criminal offense. Learn about the three phases of DUI investigations and a critical legal protection that could save your case.
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Common Patterns in Florida DUI Investigations
If you were arrested for DUI in Florida, chances are your stop followed a set pattern. Law enforcement officers are trained using a national curriculum developed by the National Highway Traffic Safety Administration (NHTSA), which breaks the investigation into three distinct phases.
Each phase presents opportunities for legal challenges:
1. Vehicle in Motion:
2. Personal Contact:
3. Pre-Arrest Screening:
Post-Arrest Processing
If you've been arrested for DUI, you need to do a thorough examination of each investigative phase to uncover critical defenses. Knowledge of the standard procedures and where they may have been improperly applied is the first step toward building a strong defense strategy.
The Typical Florida DUI Arrest Process
Traffic Stop and Initial Observations
The process often begins with a traffic stop or a traffic crash investigation. A police officer must have reasonable articultable suspicion in order to conduct a DUI investigation. The officers will note your demeanor, appearance (e.g., red eyes), speech, and any odors (alcohol, marijuana). It only takes a few of these subjective observations to establish probable cause for further investigation.
Preliminary Breath Tests(PBT)
Roadside breath testing on a portable device is not a common occurrence in Florida. Generally you are not offered a breath test until after you are arrested. If the officer requests you take a breath test before you were arrested these results will likely excluded by the Judge.
Field Sobriety Tests (FSTs)
Officers likely asked you to perform Standardized Field Sobriety Tests (SFSTs). This three test series includes the Horizontal Gaze Nystagmus (HGN), the Walk & Turn, and the One Leg Stand. Officers use these tests to assess a driver's impairment. Many aspects of these tests are subjective and are often influenced by factors unrelated to intoxication. The refusal to perform roadside sobriety tests may be admissible in court as consciousness of guilt.
Drug Recognition Expert (DRE) Evaluation
In cases where drug impairment is suspected, a DRE officer may be called. DREs use a 12-step protocol to identify signs of drug impairment. The testimony of a DRE can be powerful evidence in DUI cases. Judges often given extra weight to a DRE's opinion even without immediate blood/urine results.
Arrest and Chemical Tests (Breath, Blood, Urine)
After your arrest, you'll be transported to the jail and asked to submit to a breath, blood, or urine test. These tests measure your Blood Alcohol Concentration or the presence of drugs in your system. Strict procedures govern the collection, handling, and testing of these samples.
Implied Consent & Refusal Consequences
Florida has an implied consent law, meaning that by driving on state roads, you implicitly agree to submit to breath, blood, and urine testing upon the lawful request of a law enforcement officer. Refusal results in a 12 month driver's license administrative suspension. There is no certain answer if you should blow or refuse. It's only a clear answer if you know you weren't drinking. While breath test refusal is beneficial in some situations, it also can be used against you in court and leads to longer license suspensions.
The 10-Day Rule (Administrative Suspension)
This is critical! After a DUI arrest in Florida, your physical driver's license is confiscated, and you are issued a 10-day temporary permit (the DUI citation acts as your temporary permit). You have only 10 calendar days from the date of the arrest to request a hardship license or demand a formal review hearing with the DHSMV to challenge the administrative suspension of your license. Failure to act within this window results in automatic suspension, separate from the criminal case outcome. An attorney can handle this crucial step for you.
The Criminal Court Process
This runs parallel to the administrative process. It involves arraignment (pleading guilty or not guilty), pretrial hearings and negotiations (where plea bargains like "wet reckless" might be discussed), potential motions to suppress evidence (often based on lack of probable cause or procedural errors), and potentially a trial and sentencing. A conviction here results in criminal penalties (fines, jail, probation).
Body Worn Camera (BWC) Footage & Forensic Video Analysis
Body Worn Camera (BWC) footage has become a standard and often critical piece of evidence in DUI cases. It hopefully captures the interaction between you and law enforcement from the moment of the stop through the arrest and testing phases. This video provides a visual record that can either corroborate or contradict officer testimony and reports. It is often the case the police reports emphasize all the bad while overlooking all the good. Body camera footage often balances against the police report.
Merely watching the video isn't enough. A thorough defense requires detailed analysis. At Lotter Law, we utilize Adobe Premiere Pro and other video editing software to conduct in-depth analysis of BWC recordings.
Forensic Video Analysis Requires Professional Software
- Frame-by-Frame Review: Allows detailed analysis of key moments, such as SFST performance, key interactions, or procedural steps.
- Highlighting Inconsistencies: Makes it easier to identify discrepancies between the officer's written report/testimony and the actual events captured on video.
- Analyzing Officer Demeanor: Can reveal cues about the officer's training, bias, or adherence to protocol.
- Creating Exhibits: Enables the creation of clear, focused video clips to present as evidence in court or negotiations, demonstrating specific points of your defense.
- Syncing Multiple Body Camera Clips: Combining multiple body camera recordings onto a single synchronized timeline offers clarity on each officer’s perspective, positioning, and interactions in real-time. While not a major factor in every case, this nuanced approach can significantly influence outcomes by providing critical context.
- Identifying Intentional Camera Gaps and Missing Footage: Beyond recognizing technical glitches, we closely scrutinize when officers purposely deactivate their cameras, tracking the duration, timing, and individuals present. This investigation aims to reveal and challenge the justification for intentionally turning off body cameras.
Leveraging Jeff Lotter's experience from being on the "other side" of the camera, combined with detailed video analysis using industry-standard tools, allows us to uncover details that can be crucial to challenging the State's evidence and building a robust defense for your DUI case.
Severe Consequences of a Florida DUI Conviction
A DUI conviction in Florida carries serious penalties that can impact your life for years to come. These consequences escalate significantly for repeat offenders or those with aggravating factors.
- Criminal Record: A DUI conviction remains on your criminal record for 75 years in Florida, impacting job opportunities, housing, and more. It generally cannot be expunged.
- Fines and Fees: Significant fines are standard, increasing with subsequent offenses or higher BAC levels.
- Jail Time: Usually first offense DUIs don't involve jail time. But missing court, violating probation, or being caught driving are all high risk behaviors which substantially increase the chance of jail. Repeat offenders are case specific especially considering the law calls for mandatory jail penalties for a 2nd within 5 years and a 3rd DUI within 10 years.
- License Suspension/Revocation: A conviction leads to a criminal license suspension (minimum 6-12 months for a first offense). Refusal to test or repeat offenses lead to longer suspensions, potentially resulting in a five-year Habitual Traffic Offender (HTO) revocation.
- Probation: Probation is common, requiring reporting to an officer and adherence to conditions.
- Vehicle Impoundment: Your vehicle may be impounded.
- Ignition Interlock Device (IID): Often required for a period, preventing your vehicle from starting if alcohol is detected. Case Study: Client kicked out of diversion for a false interlock violation.
- DUI School/Substance Abuse Treatment: Mandatory classes and/or treatment programs are required. DUI School
- Community Service: 50 hours of Unpaid work is typically mandated.
- Increased Insurance Rates: Requiring expensive FR-44 insurance, drastically increasing premiums.
- Professional and Immigration Consequences: Impacts professional licenses and immigration status for non-citizens.
The severity of these consequences underscores the importance of mounting a vigorous defense.
Building Your DUI Defense with Lotter Law
You are not automatically guilty just because you were arrested. A strong defense can challenge the prosecution's case and protect your rights.
The Importance of Experienced Legal Representation
A DUI case involves complex laws, strict procedures, and potentially severe consequences. An experienced DUI defense lawyer understands the critical mistakes made at at each stage of DUI investigation. They are aable to protect your rights, and fight for the best possible outcome. Unrepresented defendants often face harsher penalties. Seeking legal counsel immediately is crucial.
Challenging the Evidence Against You
This is a core defense strategy. We meticulously examine every piece of evidence, including:
- Legality of the Stop: Did the officer have jurisdiction? If there's no jurisdiction, the case will be dimissed! Case study: The judge ruled the officers did not have jurisdiction to conduct a crash investigation.
- Legality of the Stop: Was there sufficient reasonable suspicion for the traffic stop? Was there probable cause for the arrest?
- Field Sobriety Tests (FSTs): Were the NHTSA and local standardized protocols followed? Were there environmental or physical factors affecting performance? Learn how we challenge the HGN eye test and expose false officer reporting.
- Breath/Blood Tests: Were the machines properly calibrated and maintained? Was the chain of custody for blood samples properly maintained according to Florida Administrative Code Chapter 11D-8?
- DRE Evaluations: Were DRE protocols followed? Are the DRE's qualifications or methodology subject to challenge?
- Officer Testimony & Reports: Are there inconsistencies between the officer's report, testimony, and video evidence?
Procedural Defenses & Motions to Suppress
Your attorney will look for procedural errors, such as whether Miranda rights were read correctly (if applicable) or if excessive force was used. If evidence was obtained illegally (e.g., without probable cause for a search), we file pre-trial motion to suppress. If successful, this evidence cannot be used against you, potentially leading to dismissal.
Exploring Other Defense Avenues
Depending on your case, we can explore options like the "rising blood alcohol" defense (arguing BAC was rising and below the limit while driving), negotiating a plea bargain to a lesser charge like "wet reckless," or seeking eligibility for a DUI diversion program if available and appropriate.
Why Choose Lotter Law for Your DUI Defense?
Navigating a DUI charge requires specific knowledge of law enforcement procedures, legal standards like probable cause, and effective defense strategies. At Lotter Law, our unique background provides a distinct advantage:
Former Law Enforcement Insider
Jeff Lotter served as a Florida State Trooper (including the DUI Unit) and a Deputy Sheriff. He understands how DUI investigations are conducted from the inside – how officers are trained (he was an instructor!), what procedures they must follow, and where errors can occur. This is invaluable when challenging the State's evidence.
Data-Driven Defense Strategy
We collect and analyze case data from the Orange County Clerk of Court. This gives us unique insight into trends in case dispositions, officer patterns, and judicial tendencies. We use this data to inform our strategy, anticipating challenges and building a defense tailored to your specific circumstances within the local legal landscape.
When your future is on the line, you need an attorney who understands the intricacies of DUI law and the local system. Lotter Law provides the experienced, strategic, and data-informed defense you need.
Meet Our Dedicated Team
Jeff Lotter
Attorney | Founder
An experienced Orlando attorney, Jeff brings more than two decades of front-line law enforcement and legal experience to every case. As a former Florida State Trooper and Orange County Deputy Sheriff, he offers clients a powerful advantage: insider knowledge of police procedures and prosecution strategies. Now solely dedicated to criminal defense, Jeff—a Military Veteran —approaches the courtroom as a battlefield. You, the client, are the General; Jeff is the battlefield commander executing your mission. Grounded in his Christian faith and committed to protecting freedom, Jeff sees every case as an opportunity to push back against government overreach and defend the individual against unjust intrusion. Married for over 20 years with two children, he brings the same unwavering dedication to protecting your rights as he does to his own family.
Stacy Sanchez
Senior Legal Assistant
Since beginning her legal career in 2014, Stacy has brought unwavering dedication to the field of criminal defense. She joined Lotter Law in 2021 and has since become an integral part of the team, known for her reliability, compassion, and sharp attention to detail. Originally from New York and raised in Orlando, Stacy blends tenacity with a warm, client-centered approach. Driven by a deep desire to help others, she believes every person deserves to be treated with dignity and respect—especially during some of the most difficult moments of their lives. Her strong family values guide her empathetic communication and relentless work ethic. With over a decade of experience and a genuine passion for criminal defense, Stacy continues to make a meaningful impact every day at Lotter Law.
Marissa Rodriguez
Legal Assistant
Born and raised in Orlando, Florida, Marissa joined the firm in 2022 with a strong passion for criminal defense. She has become a valued member of the team, known for her strong work ethic, and dedication to client service. Graduating at the top of her class, Marissa brings both academic excellence and practical experience to her role. Her hardworking and reliable nature ensures that every case is handled with care and precision.
Frequently Asked Questions
If you blew over .08 or refused a breath (blood or urine) test the officer likely suspended your driver's license. This takes place when he issues you a a citation that says DUI Citation at the top. If this is your first offense you are liekly eligble for a hardship license. The process to obtain your haredship license must occorr within 10 days of the arrest. If you happen to miss the 10 day window you have to wait 30 or 90 days to apply for a hardship license.
If you are convicted of DUI it's on your criminal record forever. The only way to clear your record is to have the charges dropped, reduced, or be found not guilty. In those circumstances you may be eligible to have the DUI arrest Sealed or Expunged.
Our founder, Jeff Lotter, brings 10 years experience as a criminal defense attorney combined with 18 years of law enforcement experience. He spent several years assigned to a DUI unit. 20 years of combined experience as a defense attorney, former Florida State Trooper (including DUI unit), and former Deputy Sheriff. This unique background provides invaluable insight into law enforcement procedures. Additionally, we utilize a data-driven approach, analyzing thousands of local cases to identify trends and build stronger defense strategies for our clients.
We offer free initial consultations to discuss your case. For DUIs, we offer flat-fee quotes so you know the cost upfront. Payment plans may also be available. The exact cost depends on the complexity of your specific case, which we can discuss during your consultation. If you're looking for a number $3,500-$4,500
Office Consults By Appointment Only
Law Office of Jeff Lotter PLLC
200 E Robinson St Suite 1140
Orlando, FL 32801
Serving Central Florida, including Orange County.
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Law Office of Jeff Lotter PLLC | 200 E Robinson St Suite 1140, Orlando, FL 32801