How to Have Your DUI Charges Dismissed?

Posted February 26, 2016 by Kerstin Wade

Having DUI charges dropped is a common wish that people have after their DUI arrest. Many think that a judge should be able to dismiss their case because it is their first offense and they are a valuable member of society and because a DUI may destroy their life. Unfortunately, it is not that easy to beat a DUI charge. Contrary to a common misperception, the judge is not able to dismiss your DUI. Rather, the prosecutor is the only one who can make that decision. Even though the judge presides over the case, the judge is supposed to be fair and impartial to both sides. The prosecutor or state attorney is the one who is supposed to seek justice and determine whether or not DUI charges are justified in your case.

What does that mean to you? What that means is that the prosecutor will most likely agree to either dismiss or reduce your DUI charges as long as you or your attorney can convince him or her that the prosecutor could have a hard time proving that you were impaired and that justice would be better served by either dropping the charges altogether or reducing them to a lesser offense such as reckless driving or sometimes even careless driving. While that is not as easy as just telling the prosecutor that this is your first offense and that you are not a criminal, it is not impossible.

10 Common Reasons Why Prosecutors May Drop or Reduce Your DUI Charges

The following 10 reasons are common reasons used by defense attorneys to convince the state attorney to drop your DUI charges. However, each case is different and therefore an attorney might find other reasons in your case that could help get your DUI charges dropped, dismissed or reduced.

1. Illegal Traffic Stop

Even if there is clear evidence that you were driving and that you were impaired (maybe you had a really high breath test), a prosecutor may not be able to prove the DUI charge against you. That is because the prosecutor will not be allowed to use any of the bad facts against you, such as the breath test result, if the police officer didn’t have a right to pull you over in the first place. There are many reasons a traffic stop could be illegal. For example weaving within your lane is not enough to pull you over. It could also be that even though the police office could stop your car at first, he illegally prolonged the traffic stop. Maybe you were stopped as part of a DUI checkpoint and the police did not follow proper procedures during the checkpoint and thereby making the entire checkpoint and your stop illegal. There are many more reasons, the stop in your case could be illegal and an experienced DUI defense attorney will be able to evaluate your case.

2. Not Enough Evidence to Prove You Were Impaired

Even if the police officer had a right to pull you over, he must have enough facts that would lead him to believe that you were impaired before he can arrest you on suspicion of DUI. Only after he has legally arrested you, can he request that you take a breath test. The police will often use facts such as slurred speech, unable to walk a straight line or stand without swaying to show that you were impaired. That is why they ask you to perform roadside field sobriety exercises. If you refuse to perform those exercises, the prosecutor will have a much harder time to prove that you were impaired. However, even if you perform those exercises, a skilled DUI attorney may be able to argue that the exercises were not conducted the way they should have and may be able to keep them from being used altogether.

3. Prosecutor Cannot Prove You Were Driving a Car

In some cases that can be tricky because the prosecutor does not have to prove that you were actually driving when the police officer stopped you. If you were sitting in your car with the keys in the ignition that could be enough evidence to show you were operating a car. However, the law says that you have to be on a public road and therefore just sitting in your own driveway is not enough. If an accident is involved and the police do not find you inside your car but are relying solely on your own admission that you were driving, a skilled defense attorney can possibly file a motion to keep the prosecutor from using the evidence he or she has against you.

4. You Consumed Alcohol After You Drove / Impairment at Time of Driving

It is not enough for the prosecutor to prove that you were driving and that you were impaired by alcohol or a controlled substance. He or she also has to prove that you were impaired at the time you were driving. This means that it matters how much time has passed between the time of the traffic stop and the time you took the breath test. If too much time has passed since the stop, your attorney may be able to argue that at the time you were driving you had not absorbed all of the alcohol in your system and therefore were not impaired by the alcohol at that time. If you were involved in an accident or the officer finds you on the side of the road or in a public parking lot and you had empty containers of alcohol in your car, you may be able to argue that you were drinking after you stopped.

5. No Chemical Test (No Breath, Urine or Blood Test)

If you refused to take the breath test or another chemical test, such as a urine or blood test, the state attorney may have a hard time trying to prove you were impaired. It does not mean that he or she will not be able to prove that and that your DUI has to be dismissed. In that case it will depend what other arguments the prosecutor has. Even if the prosecutor has other facts, it will matter whether or not the judge will allow the prosecutor to use those facts. An experienced defense attorney may be able to make an argument to convince the judge not to allow the prosecutor to use some or all of the other facts the prosecutor has.

6. Improper Request For Breath Test

Even if you took a breath test or maybe a urine or blood test, a defense attorney may be able to argue that the police officer had no right to request that test. That could be because the arrest was illegal in the first place. If you took a urine or blood test, your attorney may be able to argue that the officer didn’t have a right to request that type of test and should have requested a breath test instead.

7. The Breath Test Machine was not Working Properly

Another way to prevent the prosecutor from being able to use the breath test in your case is to show that the breath test machine the police used was not working. This can be done by looking at the maintenance and prior breath test records from the machine that was used in your case for a period of 6 months to a year prior to and maybe even after your breath test.

8. The Police Didn't Use an Approved Breath Test Machine

In order for the police to be able to legally use a breath test machine, the machine has to be approved by the Florida Department of Law Enforcement. That means that the machine has to meet certain requirements and that the machine cannot be substantially altered after it was approved. I have been able to successfully argue that a machine was not considered to be an approved breath testing instrument because the machine had been altered in a way that the breath test results could have been affected by the alterations.

9. Medical Conditions Explain the Symptoms of Impairment

Even if the prosecutor has facts to prove that you were impaired and those facts per their police officer indicate that you were impaired by alcohol or a controlled substance, a skilled DUI defense attorney could make an argument that the observations the police officer made could be due to a medical condition. For example diabetes can cause the exact same symptoms as alcohol this includes swaying and the inability to walk a straight line. Diabetes can even cause an odor that many police officers mistake for the odor of alcohol. Diabetes is only one example. There are many other medical conditions that could explain some or all of the observations the police officer made. For example someone who had a recent knee operation would not be able to stand without swaying or walk a straight line. Sometimes, people are just nervous or tired or both and that may cause them to show symptoms of impairment.

10. You Were Under Influence of Something Other Than Alcohol or a Controlled Substance

Last but not least there if the prosecutor can prove that you were driving and impaired while driving, he or she has not proven a DUI case against you. That is because the prosecutor has to not only prove that you were impaired but that you were impaired by either alcohol or a controlled substance. It is not illegal to drive and be impaired by something else, such as a medical condition or some type of pill that is not considered a controlled substance under Florida law. For example, Ambien is not considered to be a controlled substance in Florida. Ambien can cause sleep walking and sometimes people are known to get in a car and drive while sleeping because they have taken Ambien. If you were under the influence of Ambien and the prosecutor is not able to prove that you knowingly took Ambien after you had alcohol, you may be able to beat the DUI charges against you.


As you can see a lot of these issues can be quite complicated. Therefore, it is always best to hire an experienced DUI attorney who is familiar with these and more arguments that can be made to help you get your DUI charges dismissed or at least reduced. Kerstin Wade has handled hundreds of DUI cases and has successfully used these and more defenses to help her clients avoid a DUI conviction. Fill out the form on the top of the page or call us at 813-401-0130 to see how we may be able to help you.