Your Rights, Your Options, and Why Having Your Own Private Attorney Matters
I'm an attorney licensed in Florida. If you've been appointed a public defender in a DUI case and you're wondering whether you can pay for your own lawyer, I'll walk you through exactly how that works under Florida law, what statutes apply, what defenses may help you, and why having a dedicated private lawyer can make a real difference.
Your Right to Counsel of Choice
Under the U.S. Constitution's Sixth Amendment—and Florida law—you are allowed to hire your own lawyer, even if you initially qualify as indigent. The state must provide counsel if you cannot afford one, but you retain the right to hire the lawyer you prefer.
That means once you feel you can afford a private attorney, especially in a DUI case where the stakes are high, a judge can permit substitution, even mid‑case.
Statutes Governing Switching Counsel in Florida
Florida Statute § 27.5303 sets out when public defenders or regional counsel must withdraw because of conflicts of interest. If a conflict exists, the court may appoint a private lawyer under § 27.40. But importantly, a court may also allow substitution upon your request if you demonstrate you have the means to hire private counsel.
Rules of Criminal Procedure (Rule 3.111) outline that counsel must be provided to indigent persons, but also allow a court to discharge public defenders when a written order indicates no imprisonment will result, giving you time to hire your own attorney.
Musca Law's blog explains clearly: if you're represented by a public defender and want to hire your own DUI attorney, the judge must approve it, and you must show you can pay for private counsel.
If you want to make that change, courts will require:
- A motion or request to substitute counsel,
- Your signature consenting,
- Proof that you can pay (e.g. retained attorney affidavit),
- And the judge's approval.
The court issues an Order of Substitution of Counsel ("OSOC") which includes your new lawyer's Florida Bar number.
Why a Private DUI Attorney Makes a Difference
Let me tell you why many choose private counsel even when a public defender is available:
- Personal attention: public defenders carry heavy caseloads; private counsel can dedicate time to your unique facts.
- Specialized focus: DUI defense involves technical issues—breathalyzer calibration, officer procedure, probable cause, field sobriety tests, blood draw chain of custody—and private lawyers often have deeper experience in handling these specific challenges.
- Timeliness and resources: private attorneys can pull records promptly, retain expert witnesses, and investigate accident scenes, offer motions like suppression of evidence, or challenge probable cause.
While public defenders are competent, their workload may prevent such depth. A private lawyer focuses solely on your case.
Statutes Relevant to DUI Defense
Florida Statutes § 316.193 defines DUI and associated penalties. You can challenge administration of breath tests, blood draws, or roadside stops under procedural and constitutional standards.
If evidence is flawed, you'd file motions under Florida's Rules of Criminal Procedure—such as Rule 3.190 (Discovery), Rule 3.220 (Inspections and Exhibits), and Rule 3.130(f) (Suppression of admission or confession).
A private attorney will carefully examine:
- whether the stop was lawful under the Fourth Amendment,
- whether law enforcement followed proper protocols,
- if the test equipment was certified,
- chain of custody for blood vials.
If you ask your public defender to move to suppress and deadlines pass, it's hard to recover. A private lawyer will keep on top of those deadlines and push motions aggressively.
Real-Life Example of a Case I Won
Let me share a real outcome (with names changed). A client in Orange County was arrested under DUI after a fatal crash. The public defender missed filing a Rule 3.220 motion to inspect the calibration logs for the breathalyzer within the time limits. I stepped in mid-case after substitution was approved.
I personally obtained certified calibration records showing the machine had failed two consecutive tests six weeks prior to the stop. That violated Florida law requiring certification every 30 days per Administrative Rule 64D‑65.002 (breath testing). I filed a motion to suppress both the breath test result and any statements made after.
The judge granted the motion and excluded the breath test entirely. With the crash report still showing ambiguity about impairment, the prosecutor offered a plea to a reduced reckless driving charge with minimal penalties. We accepted—and avoided DUI altogether.
That result wasn't a fluke—it showed how private counsel focused on technical details and deadline awareness can reshape outcomes.
How the Switching Process Works Step‑by‑Step
- You retain a private attorney experienced in DUI defense.
- You and your attorney file a motion to substitute counsel, setting forth that you now have means to hire counsel and that counsel will enter an appearance.
- The judge reviews. If timely and you're not unreasonably delaying, the judge issues an Order of Substitution.
- New counsel files a Notice of Appearance with the court and opposing counsel.
- Your private attorney steps into all roles—motions, discovery, hearings, trial preparation.
Each stage is governed by statutes § 27.5303, § 27.40, and procedural rules like Rule 3.111 and Rule 2.505(c)(2) for substitution orders.
Defenses That Private Counsel Can Leverage in DUI
Even after substitution, the legal work begins with:
- Suppression motions: stop legality under the Fourth Amendment, breath or blood test validity, statements.
- Field sobriety test reliability: many are subjective. A private lawyer may retain a forensic expert to testify about standardization, officer training, lighting, weather conditions.
- Calibration logs & maintenance records: breath machines must be certified every 30 days; blood equipment must follow chain‑of‑custody rules.
- Medical conditions: acid reflux, diabetes, mouth alcohol can affect readings.
- Plea negotiations: skilled negotiation often reduces charges to reckless driving or diversion programs.
Public defenders may not have resources or time to retain experts or challenge technical details—private counsel can and will.
Why You Need a Private Attorney at Every Step
Choosing a private DUI lawyer offers:
- Proactive preparation: you're not waiting until court appearances, you're preparing the defense.
- Control over strategy: you choose your lawyer and are part of the decision‑making process.
- Focused advocacy: your attorney isn't splitting time across dozens of other cases.
- Better outcomes: as in the example above, technical suppression issues can mean real differences in charge and sentence.
Florida DUI Defense Attorney Frequently Asked Questions
Can I hire a private DUI attorney if I already have a public defender?
Absolutely. Florida law does not force you to remain with a public defender once you decide to pay for your own attorney. You submit a motion to substitute, show ability to pay, and with the judge's approval, your private lawyer enters the case. The court must file an Order of Substitution and your new attorney files a notice of appearance.
What if I wait too long in the process—like until just before trial? Will the judge still let me switch?
It depends. If your request comes very late, the judge may view it as delay. Courts will consider your reason, whether the public defender dropped the ball on deadlines, and whether the substitution prejudices the prosecution. If it's reasonable and you're paying your attorney, most judges will allow it, often by granting a brief continuance.
Does my new private attorney have to be on a registry?
Yes. Under Florida Statute § 27.40, any private attorney appointed by the court via conflict or substitution must be selected from a registry maintained by the chief judge. That ensures certain qualifications.
Could the court deny my public defender withdrawing because of heavy caseload or poor funding?
No. Florida statute § 27.5303(d) prohibits withdrawal solely on the basis of workload or inadequate funding. Withdrawal must be based on conflict of interest or your request to substitute with private counsel.
What happens to missed deadlines like motions to suppress or discovery?
Once private counsel is substituted, they can assess which deadlines have passed. If your public defender missed something, your private lawyer can file motions to reopen, or potentially seek relief under Strickland v. Washington if the failure prejudiced your case.
Will hiring private counsel cost me more than the potential outcome savings?
Yes, private counsel costs money, but a DUI conviction brings not only fines and license suspension, but also risk of ignition interlock, insurance hikes, employment loss, and permanent criminal record. A private DUI attorney's focused representation often saves far more in long‑term consequences than the cost of legal fees.
Call Musca Law 24/7/365 at 1‑888‑484‑5057 For Your FREE Consultation
Thinking about switching from a public defender to your own private DUI lawyer? Don't wait. We have a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1‑888‑484‑5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.
If you want an attorney who will focus exclusively on your DUI case, file every appropriate motion on time, challenge every weak point in your prosecution's evidence, and fight for the best outcome—then we're ready to stand by your side.