Florida law permits the prosecution of persons who are charged with DUI in either of two ways:

1. The State can prove driving under the influence charge by proving that the driver was driving a motor vehicle while his normal faculties were impaired. This type of case can be pursued even if no alcohol content test result exists from a blood, breath or urine test. These are commonly called refusal cases. Proving a driving under the influence charge in this manner usually requires the State to rely upon the subjective opinion of the arresting officer(s) in proving that the defendant had a suspicious driving pattern, smelled like alcohol, and/or performed poorly on the field sobriety tests. These characteristics alone often lead to an arrest for driving under the influence.

Unfortunately for the defendant, Florida's implied consent law requires submission to a breath test when under suspicion of driving under the influence. As a result, the state will in a refusal case argue to a jury that the defendant's refusal of a breath test should be considered as what they commonly call "consciousness of guilt." In other words, the state will ask the jury to consider what the defendant was afraid of in their decision to violate the law by refusing to provide a breath sample. They will argue that if he/she was really not impaired, then providing a breath sample to prove such would have prevented the prosecution of the case. This is an argument that is often permitted by judges in a refusal case.

2. The second way that the State may attempt to prove some DUI cases is where there is a chemical sobriety test result (blood, breath or urine) over the applicable legal limit of .08. This type of case is commonly known by lawyers as the DUBAL. It would be more accurate to call this driving with an unlawful breath/blood alcohol level. To prove this type of DUI, the State must prove either that the defendant was driving a motor vehicle while his normal faculties were impaired (see above) and/or that he was driving with a breath/blood alcohol level above the legal limit of .08. In other words, the offense is committed simply by having an unlawful blood alcohol level of over a .08 and being in actual physical control of an automobile.


A DUI conviction or plea of "guilty" or nolo contendere will be a permanent part of your driving record and your criminal history. It never comes off your record since a guilty or no contest plea on a DUI charge requires a conviction in the State of Florida. DUI is the only charge in the State of Florida that requires a conviction upon the entering of a guilty or no contest plea.

Are you facing criminal charges of a DUI? Contact a Miami DUI Lawyer from our firm today!

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