Why Your Behavior at a Traffic Stop Might Lead to a DUI Arrest—Even Without a Breath Test
As a Florida DUI Defense Attorney, I often meet people who are shocked to find themselves arrested for DUI even though they weren't given a breathalyzer test or blood draw. Many ask, "Can officers really charge me with DUI based only on what they say they saw?" The truth is, yes, they can—and they often do. Florida law allows law enforcement officers to arrest drivers based on their observations, but that doesn't mean the case will hold up in court. That's where hiring a private DUI lawyer makes all the difference.
Let me walk you through how officers build these cases, what the law says, and how I challenge these arrests in court.
Florida DUI Law and What It Actually Requires
Under Florida Statute §316.193(1), a person is guilty of driving under the influence if they are:
"Driving or in actual physical control of a vehicle within this state, and the person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired."
This definition is broad. Nowhere does it say an officer must have a blood or breath test to prove intoxication. Instead, it focuses on whether your "normal faculties" are impaired. That opens the door to a DUI charge based solely on what the officer says they saw.
What "Officer Observations" Typically Include
When a DUI is based only on officer observations, it usually involves:
- Slurred speech
- Bloodshot or watery eyes
- Odor of alcohol on breath
- Difficulty retrieving documents
- Fumbling with keys or a wallet
- Swaying or unsteady stance
- Poor performance on field sobriety exercises (FSEs)
- Admission of drinking or drug use
An officer may write in the report that you had "glassy eyes" and "reeked of alcohol," even if you only had one drink. But just because they write it down doesn't make it true—or enough to convict.
This is where your defense attorney steps in.
How I Defend DUI Charges Based on Officer Observations
Defending a DUI without a chemical test is possible—and often winnable—because the case rests on subjective claims. Police officers are trained to observe behavior, but they are not medical professionals, and they are not always right.
One key defense is the challenge to the validity of the field sobriety tests. These tests are voluntary, not mandatory, and often misinterpreted. For example, if you were nervous, tired, overweight, or wearing bad shoes, your balance may be off through no fault of alcohol. I've successfully argued this in court more than once.
Another major point of attack is the dashboard or body camera footage. I often subpoena the video to compare the officer's report with what really happened. More times than I can count, I've found discrepancies between the written report and the actual behavior captured on video.
Real Case Example: Charges Dropped After Video Reveals Calm and Coherent Client
One client of mine was pulled over late at night in Fort Myers. The officer claimed she had bloodshot eyes, slurred speech, and admitted to having "a couple of drinks." The officer arrested her without giving a breath test, based solely on her behavior during field sobriety exercises.
Once I obtained the bodycam footage, it told a different story. My client spoke clearly, was respectful, followed directions, and stood still while answering questions. The video directly contradicted the officer's report.
I filed a motion to dismiss for lack of probable cause. After reviewing the footage, the State Attorney dropped all charges before trial.
Why a Private Attorney Gives You a Better Shot at Beating a DUI
Public defenders are hardworking and often talented, but they're overloaded with cases. They don't have time to request and analyze hours of bodycam footage or challenge every step of the arrest.
As a private DUI defense attorney, I limit my caseload so I can dig into every case. I investigate every detail—was the stop legal? Was the officer properly trained? Did they follow DUI protocols? Is the video consistent with the report?
If you've been arrested based on officer observations alone, you need someone to challenge the narrative and pressure the prosecution to produce real proof. That's not going to happen if you're depending on someone with 150 open cases.
Relevant Statutes That Can Help Your Case
In addition to §316.193, several other statutes may come into play:
- §901.151 – Florida Stop and Frisk Law: Requires reasonable suspicion for a stop. If your stop wasn't legal, anything after that may be thrown out.
- §316.1905 – Use of Audio and Video Recording Equipment: Gives us the right to request and use officer dashcam and bodycam recordings to challenge the arrest narrative.
- §90.802 – Hearsay Rule: Prevents the prosecution from relying on statements made outside of court unless they fall under an exception.
The statute doesn't require a breath or blood test, but the state must still prove impairment beyond a reasonable doubt. Without test results, that proof becomes shaky. That's where we press them hardest.
What You Should Do Immediately If You've Been Arrested
If you're facing DUI charges based solely on observations, don't assume the situation is hopeless. You should:
- Write down everything you remember about the traffic stop.
- Do not post about your case on social media.
- Do not contact the arresting officer or prosecutor.
- Contact a private DUI lawyer immediately so time-sensitive footage and evidence can be preserved.
Time is not on your side. Officers usually overwrite dashcam footage in 30 to 60 days. If we don't act fast, the evidence that could clear you might be lost.
Why the 10-Day Rule Still Matters Even Without a Breath Test
Florida law gives you just 10 days from the date of your arrest to request a formal review hearing with the DMV to challenge your license suspension. Even if you weren't given a breath test, this rule still applies if the officer alleges refusal or impairment.
As a private attorney, I file that request and represent you at the hearing. This hearing is an important chance to challenge the legality of the stop before your criminal case even begins.
Florida DUI Charges Can Affect More Than Just Your Record
A DUI conviction, even for a first-time offense based on officer observations, can carry serious consequences:
- Up to 6 months in jail
- Up to $1,000 in fines
- 6 to 12 months driver's license suspension
- Ignition interlock device
- Permanent criminal record
- Increased insurance rates
- Immigration and employment consequences
If the officer also claimed you had a child in the car, caused property damage, or were speeding, these aggravating factors can quickly turn a misdemeanor into a felony. That's another reason to have an attorney review everything.
Florida DUI Defense FAQs
How can an officer arrest me without a breath or blood test?
Under Florida law, police are allowed to arrest someone for DUI if they believe your "normal faculties are impaired," even without a chemical test. They rely on observations such as slurred speech, bloodshot eyes, unsteady movements, and poor field sobriety test performance. However, these observations are highly subjective, and a private attorney can challenge them with evidence like video footage and witness testimony.
What if I performed badly on the field sobriety tests?
Field sobriety tests are not as reliable as people think. Factors like medical conditions, anxiety, fatigue, weather, and even the shoes you're wearing can affect your balance or coordination. I've won cases by proving that the so-called "poor performance" had nothing to do with alcohol. Video footage often shows my clients standing and walking normally, contradicting the officer's report.
Can I be charged if I refused all tests?
Yes. Florida has an implied consent law, which means that by driving in Florida, you agree to submit to a breath, blood, or urine test if lawfully arrested for DUI. Refusing can result in a license suspension, and the refusal can be used as evidence of guilt at trial. Still, refusal doesn't automatically mean you'll be convicted. I've defended many refusal cases successfully by focusing on lack of probable cause.
Is it harder to prove DUI without a chemical test?
Yes, it is. Without a BAC (blood alcohol content) number, the state has to rely entirely on circumstantial evidence like officer observations. This makes it easier for your attorney to challenge the case. In many cases, the prosecution is willing to reduce the charges or dismiss them entirely when the evidence is weak or inconsistent.
Can a private DUI lawyer really make a difference?
Absolutely. A private DUI lawyer can investigate your case thoroughly, challenge the officer's report, and request critical evidence like dashcam footage and dispatch records. Public defenders rarely have time to do this level of work. Hiring a private attorney often leads to better outcomes—whether that's a reduction in charges, dismissal, or acquittal at trial.
Call a Florida DUI Defense Attorney Today
If you've been arrested for DUI based on officer observations alone, do not wait to protect your rights. You need a skilled advocate who knows how to expose weak evidence and fight back against flawed reports.
Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation
Musca Law, P.A. has 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 35 office locations throughout the state of Florida and serve all counties in Florida, including Jacksonville, Miami, Tampa, Orlando, St. Petersburg, Hialeah, Port St. Lucie, Cape Coral, Tallahassee, Fort Lauderdale, the Florida Panhandle, and every county in Florida.